THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE Inthe Matterofthe Marriage of GABRIEL Y. LEE, Respondent,

v. CAROL ANN KENNARD, 

### Appellant. No. 68266-1-1 ORDER DENYING MOTION TO RECALL MANDATE AND DENYING THE MOTION TO STRIKE RESPONDENT'S ANSWER TO THE MOTION TO RECALL MANDATE The appellant, Carol Kennard, has filed a motion to recall the mandate 

### issued by this court on October 18, 2013. Respondent, Gabriel Lee, has filed a response. Kennard filed a motion to strike Lee's response and a reply. Lee filed a 

### responseto the motion to strike, and Kennard filed a reply. Both Kennard and Lee requestfees. 

### The motion to recall the mandate suggests thatthe opinion in Lee, by virtue 

### of the phrase "unlessthe separation agreement issetaside," impliedly overturns In
re Marriage ofHulscher. 143 Wn. App. 708, 108 P.3d 199 (2008), and itshould be 

### clarified to guide the trial court on remand. Inre Marriage of Lee, 176 Wn. App. 678, 693, 310 P.3d 845 (2013). The phrase is merely a referencetothediscussion in section II ofthe opinion, which relied on Hulscher. It was not intended to imply 

### any disagreement with Hulscher. Under a timely motion for reconsideration, the panel wouldhave removed this language as unnecessary. However, the casewas mandated and the trial court has already acted on remand. Appeal is a more 

### appropriate procedurethan recall of the mandate underthe facts here.No. 68266-1-1/2

We have considered the motions and have determined that both motions 

### should bedenied. Now,therefore, it is hereby ORDERED thatthe motion to recall the mandate is denied; it is further ORDERED that the motion to strike the answer to the motion to recall the mandate is denied; it is further 

### ORDEREDthat Kennard's requestforattorneyfees isdenied; it isfurther ORDERED that Lee's requestfor attorneyfees is denied. 

# Donethis 20^ dayof \NfY\(rV>v 2014. 

# LvaJQ.^V t^^^

r«o „ O c=> COO

«c~ 

### 2£ S3* 

### ^ 5D O-r, ro -n S-, o _->—' 5=-Of~ 3* C/5fT)' ' =c £>C3

• • scf~ f\3 32 U3 =c<IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON Inthe Matterofthe Marriage of GABRIEL Y. LEE, Respondent,

v. No. 68266-1-1 DIVISION ONE PUBLISHED OPINION CO C/">

en

9? CAROL ANN KENNARD, ] en 7:: •< Appellant. ) FILED: September 16, 2013 

### Appelwick, J. — Lee and Kennard separated in 1999 and entered an agreed decree ofdissolution in2000. In2011, Kennard soughtentry of a QDRO with a present dayeffective date. Kennard also sued to collectspousal maintenance and child support arrears, based on Lee's failure to pay the automatic cost ofliving increases required by escalation clauses inthe separation agreement and child support order. The trial court held that both escalation clauses were unenforceable and void. The trial court modified the effective date of the QDRO to the date of separation and sanctioned Kennard's attorney under CR 11 on that issue. We affirm as to striking the child supportescalator, entering the QDRO effective as of the parties' date of separation, and imposition of CR 11 sanctions. We reverse as to the agreed maintenance escalator and remand for enforcementofthatprovision and for award ofattorneyfees on that issue.No. 68266-1-1/2

FACTS Carol Ann Kennard and Gabriel Lee separated on February 15, 1999. Lee's attorney withdrewfrom representation inJanuary 2000. InFebruary 2000, Kennard and Lee, now pro se, signed a separation contract and property settlement agreement, as well as an agreed child support order. Kennard's attorney, H. Michael Finesilver, drafted both the property settlement agreement and the child support order. The agreementwas incorporated into a decree ofdissolution. The decree and child support orderwere entered ex parte. The decree awarded Kennard "[o]ne-half of the husband's Group Health 

### retirement benefits, subject to the terms and conditions as outlined in the Qualified Domestic Relations Order [QDRO] which accompanies this agreement, except for the 401 (k)." A QDRO was never attached to the final agreement. The decree also awarded Kennard spousal maintenance of $9000 per month. The maintenance award contained an automatic escalation clause requiring the award 

### to "be adjusted every three years based upon the cost of living index, all urban
consumers for the greater Seattle and Everett area." Kennard and Lee agreed that 

### "[mjaintenance isotherwise nonmodifiable byeitherparty, unless agreed to inwriting by the parties." 

### The childsupport orderrequired Lee to pay $875 permonth foreach of their two children. Like the maintenance escalator, the child support order contained an automatic escalation clause: "The amount ofchild support willbe increased every threeNo. 68266-1-1/3 

### (3) years based on the cost of living index, but in no event shall the amount be in
excess of$1,500 permonth, perchild, nor any less than $875 permonth, perchild." 

### The parties do not dispute that Lee regularly paid $9000 per month in 

### maintenance and the child support amount originally ordered. But, Lee never paid the automatic costofliving increasesforspousal maintenance or child support. 

### Eleven years later, in 2011, Kennard's attorney drafted a proposed QDRO and sent it to the pension plan administratorfor approval. The QDRO stated that Kennard,

as alternate payee: 

### [l]s entitled to a portion of the amounts credited to Participant's accounts 

### in the Plan as part of a just and rightdivision of the estate of the parties. Such portion is hereafter defined as "Alternate Payee's Share of Plan Benefits." "Alternate Payee's Share of Plan Benefits" shall be an amount 

### equal to a portion of the total amount held in Participant's account under the Plan, as of the date of this Order. The portion assigned for the 

### AlternatePayee's Shareof Plan Benefits shall be a percentageequivalent 

### to fifty percent (50%) of the total vested amount held in Participant's accounts underthe Plan. 

### (Emphasis added.) TheQDRO alsonoted "[tjhattheamounts credited toParticipant's accounts under the Plan from July 22, 1979 to February 11, 2000 are the community 

### propertyofboth ParticipantandAlternate Payee." Afterthe planadministratorapproved the proposed QDRO, it was presented to Leewho refused to sign and approve it for 

### entry by thecourt. Kennard subsequently moved for adoption of theproposed QDRO, for past due spousal maintenance andchild support, as well as attorney fees. Lee requested that the trial court declare both escalation clauses void and unenforceable, because they were tied solely to the consumer price index (CPI). Lee 

### also argued that the proposedQDRO wasdefective, because itentitled Kennard tohalf of Lee's pension, even benefits accruing after their separation and dissolution.No. 68266-1-1/4 Essentially, Lee explained, Kennard would receive 18 years of plan contributions, instead of six years (the amount oftime between initiation ofthe plan and their date of separation). Lee argued thatthis did not comportwiththe parties' intention. Lastly, Lee requested that the trial court sanction Kennard's attorney under CR 11 for submitting the QDRO. The court held that the child support and maintenance escalation clauses were unenforceable and declared them void.1 The trial court also refused to enforce Kennard's proposed QDRO as written, because itattempted to achieve a result contrary to the terms of the property settlement agreement and agreed decree. The court modified the pension plan segregation date to February 15, 1999—the date of the 

### parties' separation. Lee and Kennard signed the modified QDRO. The court awarded CR 11 sanctions against Kennard's attorney for $1000 as to his improper QDRO submission only. Kennard appeals. DISCUSSION 

### Kennard argues thatthe trialcourterred by holding the child support and spousal maintenance automatic escalation clauses void and unenforceable. We review 

### questions of law de novo. Bauman v. Turpen. 139 Wn. App. 78, 87, 160 P.3d 1050 (2007). Kennard also argues that the trial court erred in refusing to enter the QDRO presented by herattorney. Lee requests thatwe affirmand award himattorneyfees on appeal, because Kennard's appeal is frivolous and made inbadfaith.



### 1The contractincluded a severability clause stating that "[i]n the event that any portion of this Agreement shall be declared invalid by any court of competent 

### jurisdiction,those parts not at issue shall still be offull force and effect."No. 68266-1-1/5

I. Child Support Escalation Clause 

### Kennard argues that the trial court erred by concluding that the automatic escalation clause ofthe child supportorderwas unenforceable. Kennard claims the trial court based its conclusion on two erroneous findings: (1) the escalation clause did not contain a lid and (2) Kennard's counsel conceded the clause was unenforceable. However, this mischaracterizes the basis for the trial court's holding. The court found that the child support escalation clause was tied solely to the CPI and "was not based
on ... the ability of the husband to pay." Therefore, the court held the escalator void and unenforceable, because "[t]he substantive law of the state of Washington at the time the contract was entered into and the decree was entered had clearly stated for fifteen years ormore thatCPI-based escalatorclauses are not lawful." In 2000, when the child support order at issue was entered, it was well established that child support escalation clauses tied solely to the CPI were unenforceable. In re Marriage ofEdwards, 99 Wn.2d 913, 917-18, 665 P.2d 883 (1983) (recognizing the "clearevil" of such clauses). To be valid, escalators must be related to the child's needs and the parent's ability to pay. Id, at 918. CPI escalators violate this rule, because a rise in prices may not result in a correlative increase in the parent's wages or general ability to pay. jd. at 917-18. Moreover, since 1988, chapter 26.19 RCW provided the exclusive means for calculating periodic adjustments and modifications of child support, including automatic modification clauses authorized by RCW 26.09.100(2). RCW 26.19.035(1); RCW 26.19.020. The child support statute 

### applies even inthe case ofseparation agreements, such as the one used here. RCWNo. 68266-1-1/6 

### 26.09.070(3). Nowhere does it allowescalation clauses tied solelyto the CPI as a basis 

### for child support increases. Thus, the escalation clause here was not authorized by 

### law.2 Illegal escalation clauses are voidable andcannot be retroactively enforced to collect unpaid child support. In re Marriage of Stoltzfus, 69 Wn. App. 558, 561, 849 P.2d 685 (1993). We hold thatthe trial courtdid noterr in holding thatthe child support escalation clause was unenforceable and indeclaring it void.

II. Spousal Maintenance Escalation Clause Kennard argues that the trial court erred in holding the automatic escalation clause of the spousal maintenance agreement unenforceable as a matter of law, because it had no cap. In addition to containing no cap, the trial court found that the maintenance escalation clause was tied solely to the CPI and was not based on Kennard's needs or Lee's ability to pay. The trial court's conclusion was based on In re Marriage ofCovle. 61 Wn. App. 653, 811 P.2d 244 (1991). In Covle, the court held that a spousal maintenance escalation clause imposed by the trial courtfollowing trial was voidable, because itwas tied solely to the CPI, was 

### not based on the husband's ability to pay or the wife's needs, and did not contain a maximum lid. ]d. at 659-60. One of the factors a court must consider in awarding 

### 2Bauerv. Bauerrecognized that a parent has a rightto agree to domoreforhis or her children than the law requires. 5 Wn. App. 781, 788, 490 P.2 1350 (1971). Neither chapter 26.09 nor 26.19 RCW precludes a parent from agreeing to pay more child support than the statute requires. Child support is based on an income shares 

### model that mustbe applied each time support is adjusted or modified. RCW 26.19.020; RCW 26.19.035. Escalator clauses may not be used in lieu ofthis calculation. Without 

### calculating what the statute requires at the time ofany adjustment or modification, one cannotdetermine if a parentis agreeing to pay more. Here, nothing inthe child support 

### orderasserted that Lee was agreeing to pay more than required bythe statute. Nor did 

### it provide forthe calculations necessary to verifythat Lee was in fact paying more than the statute required when the automaticthree yearescalators were to be applied.No. 68266-1-1/7
maintenance is the "ability ofthe spouse or domestic partnerfrom whom maintenance is soughtto meet his or her needs and financial obligations." RCW 26.09.090(f); see also Inre Marriage ofFoley, 84Wn. App. 839, 845-46, 930 P.2d 929 (1997). Therefore, CPI maintenance escalators imposed by a trial court violate this statutory requirement, because a rise inconsumerprices does not necessarily mean an increase inthe obligor spouse's wages orgeneral ability to pay. See Edwards, 99Wn.2d at917-18. Kennard nevertheless distinguishes Covle, arguing that nonmodifiable 

### maintenance escalators entered into by agreement like the one here are enforceable, unlike the one that resulted from a trial in Covle. Kennard is correct that a separation 

### contract precluding or limiting the court's power to modify an agreed maintenance 

### award is to be enforced according to its terms. RCW 26.09.070(7); In re Marriage of 

### Glass, 67 Wn. App 378, 390-92, 835 P.2d 1054 (1992). We have previously recognized
a distinction between what courts may do and what the parties may do by agreement 

### with respect to the modifiability ofmaintenance. In re Marriage of Hulscher. 143 Wn. 

### App. 708, 714-15, 180 P.3d 199 (2008). The court may notimpose nonmodifiability, but 

### the parties may agree to do so. Id. If "'the contract precludes the modification of maintenance absent mutual consent, then the court lacks jurisdiction to modify the contract if itwas fair atthe time ofexecution.'" ]o\ at716 (quoting Glass, 67 Wn. App. at 390). 

### The same analysis is applicable to the CPIescalator at issue here. As in Covle, the trial court may not impose a CPI escalatoron the parties. However, noWashington
case has held that the parties are not free to agree to such an escalator in theirNo. 68266-1-1/8
settlement agreement. See id. Lee and Kennard agreed to an automatic, nonmodifiable spousal maintenance escalation clause based on the cost of living index. Unless it is found unfair at the time of execution, the court must enforce that agreement 

### according to its terms. Below, Lee did not allege that the agreement was unfair at the time itwas entered into, and the trial court made no such finding. The argument instead focused on whetherthe escalator was unenforceable as a matter oflaw. Therefore, we 

### hold thatthe trial courterred as a matterof law in holding thatthe spousal maintenance escalation clause was void and unenforceable.

III. Qualified Domestic Relations Order 

### Kennard argues that the trial court erred by refusing to enter the QDRO as presented by her attorney. She contends that the trial court had no factual basis for 

### concluding that the parties contemplated her interestin Lee's pensionbeing cutoffon their date of separation. Therefore, she argues, the trial courtimproperly reformed the contract. Essentially, the parties dispute when the date of segregation of the pension
benefits should be.
. 

### We review the language of a dissolution decree de novo. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). When an agreement is 

### incorporated in a dissolution decree, the court must ascertain the parties' intent at the time of the agreement. In reMarriage ofBoisen, 87Wn. App. 912, 920, 943 P.2d 682 (1997). Ifa decree is ambiguous, general rules of statutory and contractconstruction apply. Thompson, 97 Wn. App. at 878.

8No. 68266-1-1/9
The agreement here specified that any court interpreting the document should applythe substantive law ofWashington. UnderWashington law, a trial courthas broad discretion in distributing martial property, both community and separate. In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). Pension benefits are deferred income. In re Marriage of Landry, 103 Wn.2d 807, 810, 699 P.2d 214 (1985). As such, pension benefits that accrue during a term ofemployment are characterized in 

### the same way as the income earned during that term of employment. |cL When spouses are living separate and apart, their respective earnings "shall be the separate property ofeach." RCW26.16.140. 

### Case lawdoes not supportsimply dividingthetotal pension in half. In re Chavez, 

### 80 Wn. App. 432, 436, 909 P.2d 314 (1996). Pension increases attributable to higher 

### wages during continued employment postdissolution are community interests. In re Marriage of Bulicek, 59 Wn. App. 630, 638, 800 P.2d 394 (1990). A spouse is entitled 

### to share in postdissolution annual adjustments or cost of living increases to pension benefits, but not increases due solely to additional years of service. Chavez, 80 Wn. 

### App. at 438. Applying Washington law to the plainlanguage of the decree, Kennard's 50 percent interest inthe pension did not include any increases attributable to Lee's 

### years of continued employment postdissolution. The trial court's modified QDRO applying the separation date as the applicable end point was consistentwiththat law. Becausethis decreewas based on an agreementauthorized by RCW26.09.070, 

### the question remains whetherthe parties intended to do something more than the trial court could have ordered in a contested case. The agreement indicated the parties'No. 68266-1-1/10
intent to segregate their property on their separation date (stipulated as February 15, 1999): 2.1 Except as otherwise authorized by this Agreement, each spouse hereby covenants to make no claim upon the property or earnings assigned herein to the other party by way of marital community interest therein, and hereby releases any and all rights or interest in any real or personal property afterthe date ofseparation ofthe parties or the date of this Agreement, which ever date occurs first. Both parties agree that 

### neither will assert any claim or demand of any kind against the other except as expressly recognized herein. 

### The trial court approved the QDRO for one-half of the pension as of the date of 

### separation. This is consistentwithparagraph 2.1 ofthe agreement, unless the pension


### was subject to the "[ejxcept as otherwise authorized by this Agreement" clause. Kennard points to no language in the agreement that supports a conclusion that the pension was an exception. 

### Under federal law, the original QDRO should have specified "the number of 

### payments or period towhich such order applies." 29 U.S.C. § 1056(d)(3)(C)(iii) (2013). Itwas not attached to the agreement or decree Kennard submitted to the court. If a written contract is not a complete expression of the parties' agreed-upon terms, the 

### terms not included may be proved by extrinsic evidence if they do not contradict the written terms. Berg v. Hudesman, 115 Wn.2d 657, 670, 801 P.2d 222 (1990). But, 

### Kennard offered no extrinsic evidence to support her argument. She relied exclusively
on her own declaration as to her intent and understanding. However, subjective intent 

### of one party to an agreement does not establish the intent of the parties. Ross v. Bennett, 148 Wn. App. 40, 46, 203 P.3d 383 (2008). Kennard has notestablished that 

### the pension benefits were intended to be treated as an exception to paragraph 2.1 of the agreementor that they were intended to be divided based on herstated intent.

10No. 68266-1-1/11


### We hold thatthe trial courtdid not err inrefusing to adoptthe proposed QDRO's 11 year postdissolution effective date, instead segregating the pension plan on the parties' separation date. IV. CR 11 Sanctions Kennard argues thatthe trial courterred inawarding CR 11 sanctions against her attorney, because it did notenterfindings that he acted in bad faith orthat his argument
was frivolous. This court reviews a trial court's imposition of CR 11 sanctions for abuse of discretion. Biggs v. Vail. 124 Wn.2d 193, 197, 876 P.2d 448 (1994). CR 11 authorizes a trial court to impose appropriate sanctions if a party's filing is not well grounded in fact, or not warranted by existing law or a good faith argument to alter 

### existing law.3 Conom v. Snohomish County, 155 Wn.2d 154, 163-64, 118 P.3d 344 (2005). Here, the trial court made these exact findings on the record at oral argument 

### then incorporated those findings by reference into its memorandum ofdecision. The court concluded that the proposed QDRO's effective date was clearly contrary to the 

### original decree and was therefore neither well grounded in fact nor warranted by existing law. The trial court did not abuse its discretion in awarding CR 11 sanctions against Finesilver.


### 3 Contrary to Kennard's implication, In re Recall ofPearsall-Stipek does not require a trial court to always find bad faith in order to award CR 11 sanctions. 136 Wn.2d 255, 266-67, 961 P.2d 343 (1998). Pearsall-Stipek applies inthe narrow context 

### of recall petitions. Id.; see also Inre Recall of Lindguist, 172 Wn.2d 120, 141, 258 P.3d 9 (2011). A court may not award expenses and attorney fees against a petitioner who brings a merely frivolous recall petition—the court must find bad faith. ]d_, Innonrecall cases, a frivolousfiling and a bad faithfiling are considered alternative violations, and either can result in sanctions. Harrington v. Pailthorp, 67 Wn. App. 901, 912-13, 841 P.2d 1258 (1992).

11No. 68266-1-1/12

V. Trial Court's Failure to Award Attorney Fees Kennard argues that the trial court erred in failing to award attorney fees for having to move to enforce the child support and maintenance escalators. Kennard 

### requests attorney fees and costs "pursuantto RAP 14(1) and (3), RCW 26.09.040, and 

### RCW 26.18.160."4 RCW26.18.160mandates an award ofreasonable attorney fees to the prevailing party in an action to enforce child support or spousal maintenance. Kennard was not the prevailing party below and is not the prevailing party here as to 

### child support, so she is not entitled to fees below or on appeal based on that claim. However, she has prevailed on her claim to enforce maintenance and is entitled to an 

### award of reasonable attorney fees on appeal, solely attributable to that issue. 

### Assuming on remand that the settlement agreement is notfound to have been unfairat thetime itwas made, the trial court should award Kennard her reasonable attorneyfees 

### incurred solely with respect to the maintenance issue in the initial proceeding, on appeal, and on remand. VI. Sanctions on Appeal 

### Lee requests that we award him attorneyfees as a sanction under RAP 18.9(a), becausethe appeal is frivolous. 

### "In determining whether an appeal isfrivolous and was, therefore, 

### brought for the purpose of delay, justifying the imposition of terms and compensatory damages, we are guided by the following considerations: (1) Acivil appellant has a rightto appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the 

### 4 Presumably Kennard means RCW 26.09.140, instead of RCW 26.09.040, which does not mention attorney fees and costs. The language of RCW 26.09.140 

### clearly makes an award of fees and costs discretionary. Kennard provides no argument 

### as to why the trial court abused its discretion in failing to award fees under RCW 26.09.140, so we need notconsiderit. RAP 10.3(6).

12No. 68266-1-1/13 appellant; (3) the record should be considered as a whole; (4) an appeal thatis affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous ifthere are no debatable issues upon which 

### reasonable minds might differ, and it is so totally devoid of meritthatthere was no reasonable possibility ofreversal." Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005) 

### (internal quotation marks omitted) (quoting Green River Comty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 442-43, 730 P.2d 653 (1986)). Here, the maintenance issue was a debatable issue. We cannot conclude from the record that 

### the appeal was broughtsolelyforthe purpose ofdelay. 

### Lee argues that even if we do not find all Kennard's assignments of error frivolous, we can impose partial sanctions under In re Marriage of Farr, 87 Wn. App. 177, 940 P.2d 679 (1997). InFarr, we stated: 

### We partially grant Farr's request for fees and costs under RAP 18.9(a). 

### Although Martin has prevailed on his challenge to the imposition ofjail sanctions, his arguments relating to the right of autonomy, modification, 

### the state privacy act, and recusal are frivolous. We award Farr her fees and costs forthose portions of the appeal upon which she has prevailed, subjectto hercompliancewith RAP 18.1. IdL at 188-89. Sanctions are authorized when a person (1) uses the rules for the 

### purpose ofdelay, (2) files afrivolous appeal, or(3) fails tocomplywith the rules to pay terms orcompensatory damages. RAP 18.9(a). RAP 18.9(a) does notspeak in terms 

### offiling one ormorefrivolous issues or assignments oferror—onlyafrivolous appeal as

a whole. The standard stated in Tiffany Family Trust Corp. has been consistently 

### applied both before and after the Farrdecision. See, e.g.. Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764

13No. 68266-1-1/14 

### (2010). The sanctions awarded in Farr cannot be squared withthe rule orthe case law 

### interpretingtherule.5 Wedeclinetofollow itsexample. Alternatively, Lee requests that we award him attorney fees under CR 11, 

### arguing thatthe appeal was broughtin bad faith. We cannotfind that Kennard has used the rules for the purpose of delay, filed a frivolous appeal, or failed to comply with the rules, as requiredfor an award ofattorneyfees as a sanction underRAP 18.9. We affirm the trial court decision as to the child support order, the QDRO, and the award of CR 11 sanctions. We remand the issue ofthe maintenance escalator to 

### the trial court. Unless the separation agreement is set aside, Kennard is entitled to an 

### award ofreasonable attorney fees incurred related solely to the maintenance issue, in the priorproceeding below, on appeal, and on remand.

WE CONCUR: 

# »*£(&.<£

5Farr was afamily lawcase. 86Wn. App. 177. The fee award could have been ordered underchapter26.09 RCW.

14