IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Marriage of: 

### ) No. 80642-4-I GINA RENEE GREEN, 

### ) DIVISION ONE

Respondent, 

### ) UNPUBLISHED OPINION



### ) v. THOMAS FREDERICK GREEN, 

### )

Appellant.

__________________________________ 

### ) FILED: March 2, 2020 HAZELRIGG, J.

—Thomas Green appeals a superior court’s orderenforcing
a property settlement agreement pursuant to Civil Rule 2A (CR 2A). Thomas1 argues that the agreement did not accurately reflect the outcome of the parties’ negotiations conducted by letter and email. Because Thomas raised a genuine issue of material fact as to the terms ofthe agreement, we reverse and remand for further proceedings.
FACTS Thomas and Gina Green married in 1991. Prior to and throughout their marriage, Thomas was employed by the Washington State Department of Transportation. Gina was primarily responsible for raising the couple’s two

1 For clarity, Thomas and Gina Green will be referred to individually by theirfirst names. No disrespect is intended.No. 80642-4-1/2

children. Later, Gina worked as a paraeducator in the children’s school and as a cashier in a gas station. As a State employee, Thomas is entitled to retirement benefits through a Public Employee’s Retirement System (PERS) pension plan (PERS 2). Thomas’s pension plan accumulated $106,585.21 in assets during the marriage. The parties separated on November 13, 2016 and Gina filed a petition for dissolution. As of the date of separation, Thomas’s estimated monthly PERS 2 retirement benefit
was $3,350.87. The parties entered an agreed orderawarding Gina maintenance in the amount of

### $ 2307.27 per month. The court scheduled a settlement conference for May 9, 2017 and a trial date of June 13, 2017. Both parties appeared at the settlement conference, represented bycounsel. In a lettertothe commissionerconducting the settlement conference, Gina identified Thomas’s PERS 2 account as one of the disputed assets. The letterstates as follows: Husband’s PERS Plan 2 Tom enrolled in PERS Plan 2 on November 1, 1991, and is currently a vested member. The estimated marital benefit is $3350.87 per month (Exhibit 15). Gina would like 50% of this benefit by creating an interest in Tom’s account for Gina. Gina would also like to be named the former spouse survivor beneficiary to ensure she receives hershare ofthe retirement. The partieswere apparently unableto reach asettlementatthe conference. Between May 31 and June 12, 2017, the parties continued to engage in written negotiations through their attorneys. On May 31, Gina’s attorney sentThomas’s attorney a letter outlining a settlement offer. As for maintenance, Gina proposed

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$2,327.58 per month for eight years and $1,000.00 per month fortwo years after that. As forThomas’s retirement benefits, Gina stated asfollows: Onthe chartyouwill seeseveral “x” markings inthe parties’ columns, which warrant clarification. Gina proposes the parties equally divide the PERS II in addition to the notes made in the description column. Vanessa has contacted DRS to obtain the total monthly benefit payment the parties would divide for each of the three survivor benefit options: 50%, 66.67% and 100%. As soon I receive the informationfrom DRS Iwill forward ittoyouwith a proposal regarding how to address Gina’s interest in the account and what survivor option she proposes, ifany. (emphasis omitted). Ginaattachedtothe lettera chartdetailing the Greens’ assets and liabilities. Under the section entitled “Investments and Other,” Gina listed “PERS II Defined Benefit (Equally divide and create an Interest with Survivor Benefit) $3350.87/mo.” The chart lists the date of valuation as November 13, 2016. Thomas’s attorney responded in a letter dated June 7 containing “an offer of compromise.” Thomas agreed to a ten-year period of maintenance but proposed $1 ,600.00 permonthforeightyears and then $1 000.00foran additional two years. In addition to Mr. Green being agreeable with Ms. Green receiving the family home he is agreeable with her creating an interest in his PERS 2 account and receiving the survivor benefit as requested as opposed to creating a separate account. As you are aware, under the “creating an interest” option Ms. Green would receive an increased amount of retirement pay when Mr. Green reaches retirement age if he remains with the state and continues to make the mandatory contributions to his pension. Mr. Green still has 20 years of work ahead of him and he has no intention of leaving his job. Ifthings go as planned Ms. Green would receive a benefitfrom the 20 years of post-divorce efforts of Mr. Green, in addition to receiving the survivorbenefitwhich Mr. Green could notthen provide to anyfuture spouse.
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(emphasis added). At 2:51 p.m. on June 8, Gina’s attorney responded by email asfollows: Thankyou forthe counter offer. This email contains a counter-offer Gina has authorized meto make in response tothe counteryou sent me yesterday. Gina is [willing] to accept $2300/month in spousal maintenance for five years, then $1800 forthree years and $1000 fortwo years. She cannottake less now. She has no abilityto earn a higherincome and take less maintenance until she is educated and trained. As for retirement, Gina proposes a 100% survivor benefit. In the eventyourclient returns toworkand monthly retirement benefits are suspended as a result, your client will need to pay Gina spousal maintenance during the suspension time in a monthly amount equivalent to what she will be losing in maintenance due to the suspension. She iswilling to pay herown fees ifwe have an agreement. I am forwarding you by separate email the DRS survivor benefit breakdown foryour review. At 5:02 p.m. on June 8, Thomas’s attorney responded tothe counteroffer: Mr. Green is agreeable with your counter offer except that he proposes maintenance be paid at a rate of $2,000 per month for 5 years, $1,800 per month for 3 years and $1,000 per month for an additional 2 years. He has agreed to the requested disproportionate division of the property, to creating an interest in his retirement instead of creating a separate account and to the 100% survivor benefitforyour client. Each ofthose things are a benefit onlyto Ms. Green while they are a detrimentto Mr. Green. IfMs. Green is agreeablewith the above proposal this mattercan be settled and we can all enjoy ourweekend a bit more. Let me know. At 10:44 a.m. on June 9, Thomas’s attorney senta second email: I amwriting tosupplementthe lastcounter-offerI sentoverlast night. Part ofthe rationale in proposing the $2,000 for 5 years has to do with the mandatory contribution Mr. Green must make to his PERS 2 account. I understand the position taken atsettlement conference.

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However, in lightofmyclient’s agreementto 

### create an interest in his account and to allow for the 100% survivor benefit, Ms. Green will receive iust as much benefit as Mr. Green from any future contributions/withholdings. Additionally, he has no control over the deduction. As such, we feel it really should be factored into the deductions from his income. Further, maintenance inthe amountof$2,000 permonthwould cover yourclient’s need according to the financial declaration submitted at settlement conference, which includes a premium for health insurance, $100 going into savings and $150+/- that she is paying toward the daughter’s vehicle loan and insurance that should arguably be paid bythe daughter. Finally, we feel the court would come in around 8 years for the duration of maintenance ifthe matterwentto trial so ifwere[sic] are able to settle matters Mr. Green would be agreeing to two years of maintenance beyond whatwe believe is a likely outcome attrial. In anyevent I wanted to expand on the rationalesubmitted last night. Hopefullywe can getthis thing wrapped up today. (emphasis added). At 6:42 p.m. that same day, Gina’s attorney responded via email that she
was willing to accept Thomas’s June 9 counteroffer on three conditions, two of which are relevant here.2 2. In the event Mr. Green leaves state employment for any reason within the next 60 months, hewill pay Gina within 60 days ofending employment with the state the amount of $18,000, which is the amount she is foregoing in spousal maintenance ($2300

- $2000 = $300 x 60 months) in reliance on your client’s assertion that he will remain an employee ofthe state and have a mandatory retirement contribution fromwhich Ginawill benefitand which reduces hisability to pay her$2300 per month in current maintenance forfive years. 3. Mr. Green agrees nottotakea lump sum withdrawal from hisstate retirement upon termination from employment for any reason. He must agree that the parties will receive monthly benefits and not a lump sum. Ifyourclientwill agree to these conditions, we have a deal.

2Theother involved a tax refund that is not relevantto this appeal.
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At 9:52 

### am. on June 12, Thomas’s attorney responded with another counteroffer: As to Condition #2, Mr. Green does not intend to leave employment with the state anytime in the next 5 years but he cannot predict the future. Atthe same time he is cognizant ofyour client’s concern. To more fairly address that situation he proposes that the $18,000.00 be divided by 60 months which comes out to $300 and that in the event he leaves employment with the state during the next 5 years he would owe a lump sum equaling $300 x (60

— the number of months he worked after entry of the decree). Additionally, he proposes thatsuch a clause would kick in if he voluntarily leaves his job or is terminated due to misconduct or the like by him, not in a situation where the state is laying people offfor budget cuts orother reasons beyond Mr. Green’s control. Finally, he is agreeable with Condition # 3. At 11:59 a.m., Gina’s attorney responded: Since Mr. Green will solely be in control of when he retires, if he chooses notto retire at age 65, thereby prolonging Gina’s receipt of retirement, Mr. Green will pay her monthly maintenance starting when he turns age 65 in the amount equal to what she would otherwise be receiving in retirement if he chose to retire at age 65. Wejustwantto ensure Mr. Green does not remain employed so as to prevent Ginafrom getting maintenance. I trustwe have an agreement, and will awaityourconfirmation ofthe same. At 3:43 p.m., Thomas’s attorney responded: “Mr. Green is agreeable with last proposal made (payment of spousal maintenance in the amount Ms. Green would have received when Mr. Green reaches age 65 in the event he decides to work beyond the age of 65 and delay receipt of retirement [benefits]).” At 3:53 p.m., Gina’s attorney responded that she would draft a property settlement agreement (‘Agreement”) consistentwith the parties’ negotiations. She requested thatthe parties meet at the courthouse the following morning, the scheduled trial

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date, “to review paperwork and make any necessary changes.” The parties notified the superior court before the close of business on June 12 that they had reached a settlement and would not proceed to trial the following day. The court ordered the parties to appear at 1:00 p.m. on June 13 for presentation of final orders.At 8:25 p.m. on June 12, Gina’s attorney sentThomas’s attorney an email containing a cover letter, a draft version of the Agreement, a final order of dissolution, and findings offact and conclusions of law. The email read: I have attached the draft PSAforyour review. Ginawill be in at 8:30 a.m. tomorrowto review, so I reservethe rightto make anychanges she requests consistentwith the agreement, but I wanted to get itto you foryourreview. Iwill followupwith you eitherwayinthe morning. The Agreement and orders were all signed by both Gina and her attorney. The
cover letter instructed: “If these orders meet your approval, please also execute where indicated.” Gina’s attorney requested that Thomas’s attorney present the orders once signed “so neither party has to personally appearfor presentation.” The letter concluded: “Should you have any questions or concerns about the enclosed documents, please contact me.” The Agreement awarded maintenance to Gina in the amount of $2000.00 per month forthe firstfive years, $1 800.00 per month foryears sixthrough eight, and $1000.00 per month for years nine and ten. The Agreement provided that Thomas’s maintenance obligation could not be modified for any reason. The Agreement awarded Gina a 50% share of Thomas’s entire PERS 2 retirement account, including contributions made during the marriage as well as after the

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parties’ separation. It also awarded Gina 100% of the survivor benefit of both communityand separate contributions.

A. Division. Each party shall be awarded fifty percent (50%) of the husband’s entire career benefit, which the parties acknowledge and intend to include all benefits accrued priorto and during the marriage, after the parties’ separation, after entry ofthe Final Divorce Orderand upto and through thetime ofthe husband’s final retirement. B. Creation ofthe Wife’s Interest in the Husband’s Account. The parties shall sign anyand all documents necessaryto create an equal interestforthewife in the husband’s PERS Plan 2 accountfor the entirety of his career. The parties acknowledge the Washington State Department of Retirement Systems (DRS) and Washington State law mandate the language necessary to effectuate their agreementto create an interestforthewife. C. Former Spouse Survivor Benefit. The parties intend and agree thatthewife shall be a Jointand 100% Survivor Beneficiary of the husband’s PERS Plan 2 account as provided for by the Plan’s SurvivorOption 2 (Jointandwhole allowance). When Thomas Green (the obligor) applies for retirement, the Department shall designate Gina Green (the obligee) as survivor beneficiary with an Option 2 survivor benefit. Thomas’s attorney did not see the documents until the following morning, June 13. At 10:03 a.m., he sent Gina’s attorney an email disputing her representation ofthe parties’ agreement regarding the PERS 2 account. Hestated thatThomas agreed onlyto award Gina an equal share ofthe community portion ofthe PERS 2 account, and that Gina’s survivor benefit would also be limited to the community portion. He did not intend to include retirement benefits earned afterthe date ofseparation. Nor did he intend thatthe maintenance payment be non-modifiable. In reviewing the proposed PSA there is an apparent fundamental misunderstanding regarding the division of Mr. Green’s PERS Plan
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II account. The chart attached to your letter of May 31, 2017 referenced $3,350.87 which is the current marital benefit. As such Mr. Green understood that to mean the request was to divide the marital amount and that by creating an interest Ms. Green would receive the added benefit offuture COLA’s, along with any upward adjustmentto his AFC, provided there is any. He was not and is not agreeable with Ms. Green receiving a benefit based on his entire careerwhich could span another20 years. As of now Ms. Green will be receiving an approximate 70/30 split on personal property, plus 10years ofmaintenance, COLA’s on the PERS II and 100% survivor benefit. Mr. Green would not be entitled to any of Ms. Green’s postdivorce property and feels the same should go for Ms. Green when it comes to his post-divorce property. I have not heard backfrom Mr. Green on the remainder ofthe PSA butwanted to bring this issue to yourattention right away. The parties appeared atthe presentation hearing. Thomas and his attorney refused to sign theAgreement orthe final orders, arguing thatthe documents did not accurately representthe parties’ agreement. On November7, 2017, Gina moved to enforce the Agreement pursuant to CR 2A.3 The court granted Gina’s motion to enforce the Agreement, with the exception ofthe provision regarding the non-modification of maintenance, which the courtfound was not agreed to by parties. The courtfound thatThomas’s June 9 email evidenced Thomas’s intention to offer Gina a “future interest in his PERS II account in exchange for lowerspousal maintenance.” The court explained: There was no mention about limiting it to the community portion of the PERS II account, but there is language regarding future efforts of Mr. Green and future contributions and withholdings, which is compelling to me and convinces methatthatwasthe agreementthat was reached. The court denied Thomas’s motion for reconsideration. Thomas appeals.

~ Subsequenttothefailed June 13, 2017 presentation hearing, Thomas scheduled another settlement conferenceforAugust 11, 2017. It appears this conferencewas unsuccessful. -9-No. 80642-4-1110
ANALYSIS

CR 2Agoverns enforcement ofa settlementagreement. It provides: No agreement or consent between parties or attorneys in respectto the proceedings in a cause, the purport ofwhich is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereofshall be in writing and subscribed by the attorneys denying the same. Thus, CR 2A applies when (1) the agreement was made by the parties or their attorneys “in respect to the proceedings in a cause,” and (2) the purport of the agreement is disputed. CR 2A; In re Marriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d 706 (1993). An agreement is disputed forthe purposes of CR 2A ifthere is
a genuine dispute over eitherthe existence or a material term ofthe agreement. In re Patterson, 93Wn. App. 579, 583, 969 P.2d 1106 (1999)). Once the material terms areagreed upon, a party’s remorse orsecond thoughtsaboutthe agreement
are insufficientto showa genuine dispute. Lavignev. Green, 106Wn. App. 12, 19, 23 P.3d 515 (2001) We reviewthe decision to enforce a settlement agreement pursuantto CR 2A de novo, similar to our review of a summary judgment order. Condon v. Condon, 177 Wn.2d 150, 162, 298 P.3d 86 (2013). The party moving to enforce
a settlement agreement carries the burden of proving there is no genuine dispute
as to the material terms orexistence ofthe agreement. j~ at 162. “Ifthe moving party produces evidence that shows the absence of any genuine disputes, the nonmoving party must respond with affidavits, declarations, or other evidence to showthere is a genuine issue of material fact.” Patterson, 93 Wn. App. at 584. If

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the nonmoving party raises a genuine issue ofmaterial fact, atrial courtabuses its discretion if it enforcesthe agreementwithoutfirst resolving such issuesfollowing
an evidentiary hearing. Brinkerhoffv. Campbell, 99 Wn. App. 692, 697, 994 P.2d 911(2000). The court must view the evidence in the light most favorable to the nonmoving party and determine whether reasonable minds could reach but one conclusion. Condon, 177Wn.2d at 162. General principles ofcontract law applyto settlement agreements. Cruz v. Chavez, 186Wn. App. 913, 920, 347 P.3d 912 (2015). Fora contracttoform, the parties must manifesttheir mutual assentto be bound and the terms assented to must be sufficientlydefinite. Keystone Land & Dev. Co. v. XeroxCorp., 152Wn.2d 171, 177-78, 94 P.3d 945 (2004). Washington follows the objective manifestation theory, in which a courtdeterminesthe intentofthe parties based on the objective manifestations ofthe agreement ratherthan the parties’ subjective intent. Condon, 177Wn.2d at 162. However, underthe context rule, extrinsicevidence relating to the context in which a contract is made may be examined to determine the meaning ofspecificwords and terms. Hearst Comm’ns, Inc. v. Seattle Times Co., 154Wn.2d493, 502, 115 P.3d 262 (2005). Extrinsicevidence includesthe subject matterand objective ofthe contract, all the circumstances surrounding the making ofthe contract, the subsequentacts and conductofthe parties tothe contract, and the reasonableness of respective interpretations advocated by the parties. k~. at 502. An informal writing, such as letters oremails, may be “sufficientto establish
a contract even though the parties contemplate signing a more formal written
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agreement” in certain circumstances. Morris v. Maks, 69 Wn. App. 865, 869, 850 P.2d 1357 (1993). In determining whether an informal writing is sufficient to establish a contract even though the parties contemplate signing a more formal written agreement, Washington courts considerwhether(1) the subject matterhas been agreed upon, (2) theterms are all stated in the informal writings, and (3) the parties intended a binding agreement priorto the time ofthe signing and delivery ofaformal contract. ~ (citing Loewiv. Long, 76Wn. 480, 484, 136 P. 673 (191 3)).4 The main source ofcontention between the parties in terms ofwhether an enforceable settlement agreement was reached was the treatment of Thomas’ PERS 2 retirementaccount. PERS 2 plan members receive as retirementbenefits two percent of the employee’s average final compensation. RCW 41 .40.620. “Average final compensation” for PERS 2 plan members is the employee’s average compensation forthe “highest consecutive sixty months ofservice credit months prior to such member’s retirement, termination, or death.” ROW 41.40.010(6)(b). A dissolution order may divide a PERS retirement account in one of two ways. WAC 415-02-500. The account may be split intotwo separate accounts, or the non-employee spouse may be awarded an interest in the employee’s account.

~ It is arguable whetherthe series of letters and emails constituted a contract. Gina’s final June 12 email informed Thomas that the Agreement was merely a draft and she was entitled to make changes even aftersending it: I have attached the draft PSAforyour review. Ginawill be in at8:30 am. tomorrow to review, so I reserve the rightto make any changes she requests consistentwith the agreement, but I wanted to get itto you foryour review. I will follow upwith you eitherway in the morning. Because the parties do not explicitly raise this issue, and it is unnecessaryto the resolution ofthis appeal, we do notaddress it.

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WAC 415-02-510; 520. In the eventthatan interest is created, the order may limit the non-employee spouse’s share to a percentage of the service credit earned during the marriage. WAC 415-02-500(1 5); see also In re Marriage of Bulicek, 59 Wn. App. 630, 639, 800 P.2d 394 (1990) (method used by courts to calculate the communityshare ofa pension is by dividing the numberof months of marriage by the total months ofservice and multiplying that bythe monthly benefit at the time of retirement); In re Marriage of Chavez, 80 Wn. App. 432, 437, 909 P.2d 314 (1996) ([lincreases in pension benefits based on a retiree’s higher salary at the timeofretirementshould be included inthe communityshare.”). Even so, the nonemployee spouse’s share will reflect any salary increases or cost of living adjustments occurring after the marital period. See https://www.drs.wa.gov/publications/member/multisystem/propertyDivision.htm Considering the objective and the circumstances surrounding theformation of the agreement, we hold that the agreement does not objectively manifest a mutual intent that Thomas and Gina would equally share in Thomas’s career retirement benefits. Both Gina’s pre-settlement conference letter and her initial May 31 settlement offer assumed an expected retirement benefit of$3350.87 per month. This was the value of Thomas’s PERS 2 account as of November 13, 2016, the date of separation, and did not include post-dissolution contributions. This indicates that Gina was seeking an equal share ofthe community portion of the PERS 2 account. At no time did Gina explicitly assert she was seeking an equal share ofThomas’s career retirement benefits.

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As did the court below, Gina points to the language in Thomas’s June 7 email, in which Thomas states: “Ifthings go as planned Ms. Green would receive
a benefit from the 20 years of post-divorce efforts of Mr. Green, in addition to receiving the survivorbenefitwhich Mr. Green could notthen provide to anyfuture spouse.” Gina also cites Thomas’s June 9 email stating that she would “receive just as much benefit as Mr. Green from any future contributions/withholdings.” Gina contends that these statements show Thomas was offering her an equal shareofhis careerretirementbenefitin exchangeforlowermaintenance payments forthefirstfiveyears. She arguesthat“{t}he onlyway Gina receives ‘justas much benefitas Mr. Green’ is ifshe receives a benefitequalto Mr. Green’s benefit, which is one-halfofhis careeraccumulation.” We reject Gina’s claim. As discussed above, because the parties agreed Gina would be granted an interest in Thomas’s account, Gina would benefitfrom anysalary increases orcostofliving adjustments occurring afterthe marital period,
even if hershare was derived onlyfrom the community portion ofthe benefits. Moreover, the parties’ conduct demonstrates a lack of mutual assent as to the terms. As soon as Thomas reviewed the Agreement, he realized it did not accurately reflect his offerto Gina. This was not a case in which Thomas merely had second thoughts about the offer. C1~ Morris, 69 Wn. App. 867-68 (court appropriately enforced settlement agreement when one party attempted to back out after receiving advice about negative tax consequences to the settlement); Lavigne, 106Wn. App. at 16 (a party’s change ofmind regarding the sufficiencyof

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the settlement amount does not make the settlement agreement disputed within the meaning ofCR 2A). Because the evidence viewed in the light mostfavorable to Thomas raises
a genuine issue of material fact as to the terms ofthe Agreement, the courterred in enforcing the agreement pursuant to CR 2A. We reverse the order granting Gina’s motion to enforce, and remand forfurther proceedings. Both parties requestfees pursuantto RCW26.09.140, which provides that “[u]pon any appeal, the appellate court may, in its discretion, order a partyto pay for the cost to the other party of maintaining the appeal and attorneys’ fees in addition to statutory costs.”5 Because we conclude that Thomas is the substantially prevailing party, we award fees and costs to Thomas under RCW 26.09.140 and RAP 18.1. Reversed and remanded.


# ‘/ WECONCUR:

~ Ginaalso cites a provision in theAgreement regarding attorneyfees.
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