Heidi Kaufman v. Geoffrey Kaufman

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two

DIVISION II April 27, 2021

In the Matter of the Marriage of No. 53366-9-II

HEIDI A. KAUFMAN,

Respondent,

and PUBLISHED OPINION

GEOFFREY A. KAUFMAN,

Appellant.

GLASGOW, J.—In 2008, Geoffrey and Heidi Kaufman negotiated a property settlement

agreement that was fully incorporated into their marriage dissolution decree. The property

settlement agreement and dissolution decree provided for an equal division of the Kaufmans’

community property, including Geoffrey’s1 military retirement, and awarded Heidi permanent,

“non-modifiable” spousal maintenance. Am. Clerk’s Papers (ACP) at 8. Under the spousal

maintenance provision, Heidi was to receive monthly spousal maintenance payments equal to 50

percent of Geoffrey’s monthly United States Department of Veteran’s Affairs (VA) disability

benefit or 50 percent of the amount of monthly military retirement he waived to receive VA

disability benefits. If Geoffrey’s VA disability benefit increased, Heidi would receive a

proportionate increase in her share. There was no appeal of the dissolution decree.

In 2018, Geoffrey’s disability rating increased, which permitted him to concurrently

receive the full amount of his military retirement and VA disability benefits without waiver,

increasing his overall monthly income. Geoffrey then stopped paying Heidi spousal maintenance.

1
For clarity, we refer to the parties by their first names.
No. 53366-9-II

Heidi filed a motion to enforce the spousal maintenance provision of the dissolution decree. The

trial court granted Heidi’s enforcement motion and awarded her back payments and attorney fees.

Geoffrey appeals the order granting Heidi’s motion to enforce the dissolution decree,

arguing that the spousal maintenance provision in the dissolution decree violated federal and state

law, making it void. He also asserts that the unappealed dissolution decree could not have res

judicata effect because the spousal maintenance provision was void from its inception. Finally,

Geoffrey argues that the trial court erred by awarding Heidi attorney fees below. Heidi requests

attorney fees on appeal.

This court recently published diverging opinions in two cases involving similar issues.

Here, we follow In re Marriage of Weiser,2 apply res judicata, and conclude that the trial court did

not lack subject matter jurisdiction when it entered the original dissolution decree. In doing so, we

depart from the reasoning in In re Marriage of Tupper.3

The Kaufmans’ dissolution decree was a valid, unappealed final judgment on the merits,

and the spousal maintenance provision is not void. Res judicata prevented Geoffrey from

collaterally challenging the validity of the dissolution decree in his response to Heidi’s motion to

enforce. The trial court did not lack subject matter jurisdiction to enter the dissolution decree, and

Geoffrey has not shown any other basis for setting it aside. The trial court properly awarded Heidi

attorney fees under RCW 26.18.160, and we grant her request for attorney fees on appeal. We

affirm.

2
14 Wn. App. 2d 884, 888, 475 P.3d 237 (2020).
3
15 Wn. App. 2d 796, 806, 478 P.3d 1132 (2020).
2
No. 53366-9-II

FACTS

Geoffrey and Heidi were married in 1985, separated in 2007, and in 2008 entered into a

property settlement agreement that was fully incorporated into their dissolution decree. Geoffrey

served in the Navy during the Kaufmans’ marriage. In 2008, Geoffrey was retired and the VA had

deemed him 40 percent disabled. Geoffrey received military retirement, but he had elected to waive

some of his military retirement in favor of VA disability benefits due to his 40 percent disability

rating. Accordingly, his military retirement pay was reduced by the amount of the VA disability

he received.

Geoffrey and Heidi, each represented by counsel, negotiated a property settlement

agreement. The property settlement agreement provided for an equitable division of community

assets and debt and stated that Heidi would have a “[o]ne-half interest in [Geoffrey’s] Navy

retirement . . . pursuant to an Order for Division of Military Retirement.” Am. Sealed Clerk’s

Papers (ASCP) at 240. The trial court entered a military pay division order that same day.

The property settlement agreement also provided that Geoffrey would pay Heidi “spousal

maintenance in a sum representing 50 [percent] of [his] Navy VA waiver/disability.” ASCP at 239.

The spousal maintenance payments were nonmodifiable and permanent. Because Geoffrey at that

time received $610 per month in VA disability pay, the agreement stated that Heidi would receive

$305 per month in maintenance. The property settlement agreement further provided:

In the event the VA waiver/disability portion and payment increases (either as a
result of [cost of living adjustments] or as a result of an increase in the VA waiver
portion to the detriment of the retainer pay), [Heidi] shall be entitled to her
proportionate increase (50 [percent] of the adjusted VA waiver/disability) in
spousal maintenance and effective as of the date of the adjustment.

3
No. 53366-9-II

Id. Geoffrey was also required to provide Heidi with updated information and documentation about

his VA disability eligibility and payments.4

The trial court then entered findings of fact and conclusions of law and a decree dissolving

the Kaufmans’ marriage. The trial court found that the property settlement agreement should be

approved, including the maintenance provision. The trial court further concluded that the property

settlement agreement was fair and equitable. The dissolution decree provided that Geoffrey and

Heidi’s community property would be “identified and divided in the Property Settlement

Agreement.” ACP at 7. The decree replicated the property settlement agreement’s maintenance

provision nearly verbatim, changing only the commencement date for payments. Neither party

appealed the dissolution decree.

In 2018, the VA increased Geoffrey’s disability rating to 60 percent. In accordance with

10 U.S.C. § 1414, Geoffrey then began receiving the full amount of both his military retirement

and VA disability benefit, increasing his overall monthly income.

Geoffrey wrote a letter to Heidi informing her that because his disability rating had been

elevated, he no longer had to waive any of his retirement pay and he believed the maintenance

provision no longer applied. Geoffrey stated, “The only change to you is you will now receive all

that is owed to you in one monthly payment (from [the Defense Finance Accounting Service]

(DFAS)) instead of two (one from DFAS and one from me).” ASCP at 268. Geoffrey stopped

making maintenance payments to Heidi in May 2018.

4
The parties appear to agree that the term “waiver” in the property settlement agreement and
dissolution decree was intended to refer to the amount of VA disability benefits Geoffrey received,
which was then equal to the amount of military retirement he was required to waive when his
disability rating was less than 50 percent.
4
No. 53366-9-II

Heidi’s lawyer wrote a letter to Geoffrey instructing him to resume maintenance payments

and to pay Heidi the amount he had withheld. The letter stated, “[T]he amount you receive under

the ‘VA waiver’ or ‘VA disability’ is just the amount upon which the amount to be paid in

maintenance is determined. Now that your ‘VA waiver’ is simply ‘VA disability’ the requirement

for maintenance still applies.” ACP at 40.

Geoffrey did not resume maintenance payments. Heidi filed a motion to enforce the

maintenance provision of the dissolution decree. Heidi argued that the spousal maintenance

provision remained enforceable and that res judicata prevented Geoffrey from collaterally

attacking the terms of the dissolution decree. Heidi also asked for attorney fees under RCW

26.09.140.

In response to Heidi’s enforcement motion, Geoffrey advanced two main arguments. First,

he contended that he had “completely complied” with the maintenance provision so there was

nothing to enforce. ACP at 148. Geoffrey argued that under the terms of the spousal maintenance

provision, he “was to pay [Heidi] 50 [percent] of any amount of the waiver/disability and [Heidi]

was to then get a check for the difference of 50 [percent] of [Geoffrey’s] taxable retirement pay.”

ACP at 147. “The maintenance clause dividing [Geoffrey’s] waiver/disability . . . was purely a

way of capturing the difference in the reduction caused by the waiver itself.” Id.5

Second, Geoffrey argued that the trial court could not enforce the maintenance provision

because it divided his VA disability benefits in violation of state and federal law. Specifically, he

argued that the law prohibited state courts from ordering a service member to divide military

5
Geoffrey does not raise this interpretation argument on appeal. Although Geoffrey describes his
communications with Heidi regarding his reasoning for stopping her monthly maintenance
payments, he does not argue that we should interpret the maintenance language in the decree to
absolve him of paying maintenance to Heidi under the current circumstances. Nor does he provide
legal authority for such an argument.
5
No. 53366-9-II

disability payments or indemnify the former spouse for any losses resulting from the service

member receiving disability payments instead of retirement payments. Geoffrey argued that the

dissolution decree was void when entered because it illegally divided his military disability

retirement and was not subject to res judicata. Geoffrey did not file a CR 60(b) motion to vacate

the dissolution decree or seek to modify the maintenance award under RCW 26.09.170(1),

however.

The trial court granted Heidi’s motion to enforce. The trial court found that the agreement

did not require Geoffrey to make payments from his disability retirement pay, nor did any court

order require him to do so, and “the aggregate amount of the VA [w]aiver/[d]isability is but a

means by which they agreed on a figure for spousal maintenance as part of an overall, fair division

of property and debts.” ACP at 231. The trial court concluded that “the property settlement

agreement [was] a contractual obligation requiring the former husband to pay [a certain] amount

for spousal maintenance.” ACP at 232. Without explicitly referencing res judicata, the trial court

ruled that the agreement was “a binding contract,” was “not void[] or voidable,” and was

“enforceable per the original terms.” Id. The trial court granted Heidi’s request for attorney fees.

In October 2019, the trial court entered a monetary judgment against Geoffrey for

$10,435.51 in past due spousal maintenance, plus $1,052.42 in interest. The trial court also

awarded judgment against Geoffrey for $10,000.00 for attorney fees and costs.

Geoffrey appeals.

ANALYSIS

A. Military Disability Retirement in Marriage Dissolution Proceedings

The federal government provides retirement pay to retired service members. Howell v.

Howell, ___ U.S. ___, 137 S. Ct. 1400, 1402-03, 197 L. Ed. 2d 781 (2017). If a service member is

6
No. 53366-9-II

disabled, they may receive disability retirement. Id. at 1403. A veteran may receive VA disability

benefits if the VA determines that the service member is disabled due to a specific service-

connected injury or illness. See 38 U.S.C. § 1110. A service member who is less than 50 percent

disabled can only elect to receive VA disability benefits if they waive an equal amount of

retirement pay. 38 U.S.C. § 5305; see 10 U.S.C. § 1414; see also Howell, 137 S. Ct. at 1403. In

contrast, a qualifying service-related injury that gives the veteran a disability rating greater than

50 percent allows the service member to receive both retirement pay and VA disability pay without

waiver of any portion of their retirement pay. 10 U.S.C. § 1414.

In 1981, the United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 211-

236, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), that Congress did not intend any form of military

retirement pay to be treated as community property subject to division in marriage dissolution and

federal law preempted state courts from dividing military retirement. In 1982, Congress responded

to McCarty by passing the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10

U.S.C. § 1408. The USFSPA provided that disposable retirement pay could be divided as

community property in a marriage dissolution. 10 U.S.C. § 1408(c)(1), (d)(5). However, the

USFSPA “expressly excluded from its definition of ‘disposable retired pay’ amounts deducted

from that pay ‘as a result of a waiver . . . required by law in order to receive’ disability benefits.”

Howell, 137 S. Ct. at 1403 (alteration in original) (quoting 10 U.S.C. § 1408(a)(4)(A)(ii)); see also

10 U.S.C. § 1408(a)(4)(A)(iii).

In 1989, the Court held in Mansell v. Mansell that the USFSPA preempted state courts

from treating military disability retirement as divisible community property. 490 U.S. 581, 589,

594, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989). The Court included a footnote explaining that res

judicata had been raised, but “[w]hether the doctrine of res judicata, as applied in California, should

7
No. 53366-9-II

have barred the reopening of pre-McCarty settlements is a matter of state law over which we have

no jurisdiction.” Id. at 586 n.5. Thus, the Court did not address this issue.

Then in 1992, the Washington Supreme Court decided In re Marriage of Kraft, 119 Wn.2d

438, 832 P.2d 871 (1992). Citing Mansell, the Kraft court held that military disability retirement

could be considered as an economic circumstance in an equitable distribution of property, so long

as the court did not offset the value of the military disability retirement with dollar-for-dollar

compensation from another source. 119 Wn.2d at 447-48. In 2001, in Perkins v. Perkins, 107 Wn.

App. 313, 316-17, 327, 26 P.3d 989 (2001), we held that the trial court impermissibly divided and

distributed veteran’s disability benefits when the trial court required the military spouse to pay his

wife spousal maintenance equal to the disposable military retirement he waived to receive

disability benefits.

Finally, in 2017, the United States Supreme Court decided Howell. In Howell, the

nonmilitary spouse was awarded a portion of her husband’s military retirement. 137 S. Ct. at 1404.

Long after the dissolution was final, the husband waived a portion of his retirement in favor of

disability benefits. Id. Citing Mansell, the Court held that the USFSPA preempted the state court

from ordering the husband to pay his former spouse by dividing his disability benefits. Id. at 1405-

06. Nor could he be ordered to reimburse or indemnify his former spouse for military retirement

payments that would have been made but for the shift to disability benefits. Id. The nonmilitary

spouse had no vested right in ongoing payments. Id.

The Howell Court emphasized that the state court ordered the military spouse to indemnify

his former wife “dollar for dollar” to restore the portion of retirement pay that was lost. Id. at 1406.

The state court’s decision “rested entirely upon the need to restore [the nonmilitary spouse’s] lost

portion.” Id. The Court recognized that any attempt to “‘reimburse’” or “‘indemnify’” the

8
No. 53366-9-II

nonmilitary spouse was merely a semantic difference and ultimately inconsistent with Congress’s

intent to exclude disability benefits from military retirement that could be divided and awarded in

a dissolution. Id. Such indemnification was improper under the federal statute and Mansell. Id.

Significantly, the Howell Court did not address res judicata or mention Mansell’s footnote 5,

leaving the res judicata analysis to the state courts.

B. Res Judicata

Heidi argues that under the doctrine of res judicata, the trial court properly enforced the

final, unappealed 2008 dissolution decree. Even if the trial court made a legal error in the

dissolution decree, she contends the trial court did not lack subject matter jurisdiction to enter the

dissolution decree, nor was the dissolution decree otherwise void. We agree.

1. Background on res judicata

Res judicata is designed to protect the finality of judgments. Weiser, 14 Wn. App. 2d at

903. The “threshold requirement” for res judicata to apply “‘is a valid and final judgment on the

merits in a prior suit.’” Id. (quoting Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99 (2009)).

The subsequent and prior action must also involve “(1) the same subject matter, (2) the same cause

of action, (3) the same persons or parties, and (4) the same quality of persons for or against whom

the decision is made.’” Id. (quoting Williams v. Leone & Keeble, Inc., 171 Wn. 2d 726, 730, 254

P.3d 818 (2011)).

If res judicata applies, a final judgment may be reopened “‘only when specifically

authorized by statute or court rule.’” Id. (quoting In re Marriage of Shoemaker, 128 Wn.2d 116,

120, 904 P.2d 1150 (1995)). CR 60 defines the limited circumstances under which a party may

obtain relief from a final unappealed judgment. Moreover, RCW 26.09.170(1), which governs the

modification of marriage dissolution decrees, prohibits the trial court from modifying “‘its own

9
No. 53366-9-II

decree in the absence of conditions justifying the reopening of the judgment.’” Id. at 904 (quoting

In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999)). In the marriage

dissolution context, “res judicata can prevent the reopening of the property settlement and . . . is a

matter of state law.” Id. at 897 (citing Mansell, 490 U.S. at 586 n.5). We review de novo whether

an action is barred by res judicata. Id. at 903.

2. Application of res judicata to the dissolution decree

Geoffrey does not dispute that the four res judicata factors are satisfied. Instead, Geoffrey

contends that the spousal maintenance provision of the dissolution decree and property settlement

agreement were void ab initio because the trial court lacked subject matter jurisdiction, and the

decree is thus not subject to res judicata. Geoffrey argues that the spousal maintenance provision

was void because he claims that Howell, Kraft, and Perkins deprive state courts of subject matter

jurisdiction to enter orders that divide military disability retirement or order indemnification.

Geoffrey also claims that the provision was void because the trial court lacked any “inherent

power” to enter an order that violated federal and state law, which he asserts is a basis for voidness

distinct from lacking subject matter jurisdiction. Br. of Appellant at 18. We disagree.

a. Subject matter jurisdiction

“‘Subject matter jurisdiction refers to a court’s ability to entertain a type of case, not to its

authority to enter an order in a particular case.’” Boudreaux v. Weyerhaeuser Co., 10 Wn. App. 2d

289, 295, 448 P.3d 121 (2019) (internal quotation marks omitted) (quoting In re Marriage of

Buecking, 179 Wn.2d 438, 448, 316 P.3d 999 (2013)). “[W]here the court ‘has jurisdiction of the

parties and of the subject matter, and has the power to make the order or rulings complained of,’”

but its order “‘is based upon a mistaken view of the law or upon the erroneous application of legal

principles, it is erroneous,’ as opposed to void for lack of jurisdiction.” Ronald Wastewater Dist.

10
No. 53366-9-II

v. Olympic View Water & Sewer Dist., 196 Wn.2d 353, 372-73, 474 P.3d 547 (2020) (internal

quotation marks omitted) (quoting Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968)). “‘If the type

of controversy is within the subject matter jurisdiction, then all other defects or errors go to

something other than subject matter jurisdiction.’” Weiser, 14 Wn. App. 2d at 905 (internal

quotation marks omitted) (quoting Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 316, 76

P.3d 1183 (2003)).

It is well established that superior courts are courts of general jurisdiction with the “‘power

to hear and determine all matters, legal and equitable, . . . except in so far as these powers have

been expressly denied.’” Id. (alteration in original) (internal quotation marks omitted) (quoting In

re Marriage of Major, 71 Wn. App. 531, 533, 859 P.2d 1262 (1993)). Under article IV, section 6

of the Washington Constitution, superior court jurisdiction extends to “all cases and . . . all

proceedings in which jurisdiction shall not have been by law vested exclusively in some other

court.” See also Weiser, 14 Wn. App. 2d at 905. RCW 26.12.010 specifically gives the superior

court jurisdiction to hear family law cases and to enter orders addressing “the distribution of

property or obligations.” As we explained in Weiser, “In light of this broad constitutional and

statutory grant of subject matter jurisdiction, ‘courts may only find a lack of jurisdiction under

compelling circumstances, such as when it is explicitly limited by the Legislature or Congress.’”

Id. (quoting Major, 71 Wn. App. at 534).

In Weiser, the nonmilitary spouse was awarded a share of her former husband’s military

retirement in a dissolution agreement. Id. at 889. The husband then waived his military retirement

in favor of military disability retirement. Id. at 889-90. We rejected the husband’s assertion that

the trial court erred by enforcing the final, unappealed dissolution decree and ordering him to

compensate his wife for her share of the waived military retirement. Id. at 890-91. We held that

11
No. 53366-9-II

res judicata protected the finality of the unappealed prior order even where the trial court’s

enforcement of that order resulted in a property division that contradicted federal and state law

because errors of law do not “automatically open [the trial court’s] judgments to collateral attack.”

Id. at 905-06.

Our discussion regarding res judicata in Weiser relied on the United States Supreme

Court’s holding in Mansell, 490 U.S. at 586, 594, and the California Court of Appeal’s decision

on remand in that case, In re Marriage of Mansell, 217 Cal. App. 3d 219, 234-36, 265 Cal. Rptr.

227 (1989) (Mansell II). Although the Court ruled in Mansell that federal law prohibited dividing

military disability retirement as community property, the Court’s opinion also “establishe[d] that

res judicata [could] prevent the reopening of the property settlement and . . . res judicata is a matter

of state law.” Weiser, 14 Wn. App. 2d at 897 (citing Mansell, 490 U.S. at 586 n.5).

On remand, the California Court of Appeal determined that it could not reopen the prior

unappealed final order dividing the couple’s property. Mansell II, 217 Cal. App. 3d at 234-36.

Under res judicata, the Court of Appeal affirmed the prior order enforcing the division of the

husband’s military disability retirement as community property despite the fact that it clearly

contradicted federal law. Id. at 236. The United States Supreme Court denied certiorari. Mansell

v. Mansell, 498 U.S. 806, 111 S. Ct. 237, 112 L. Ed. 2d 197 (1990).

Weiser also relied on In re Marriage of Brown, 98 Wn.2d 46, 48, 653 P.2d 602 (1982), in

which two appellants in consolidated cases argued that pre-McCarty orders dividing military

retirement pay were void and subject to collateral attack because the trial courts lacked subject

matter jurisdiction to divide military retirement pay under McCarty. The Washington Supreme

Court held that the division of military retirement benefits “should be regarded as an error of law

12
No. 53366-9-II

rather than a lack of subject matter jurisdiction and [thus] is not open to collateral attack.” Brown,

98 Wn.2d at 48.

Here, Geoffrey attempts to distinguish this case from Mansell II and Brown on the basis

that in those cases, the orders dividing the service members’ disability retirements were legal at

the time they were entered because the United States Supreme Court had not yet decided McCarty.

By contrast, Geoffrey argues that Washington law already prohibited dividing VA disability

benefits when the trial court entered the Kaufmans’ dissolution decree. See Kraft, 119 Wn.2d at

451; Perkins, 107 Wn. App. at 327. However, res judicata also shields a prior unappealed order

that was incorrect even at the time it was made, so long as the court had personal and subject matter

jurisdiction. Weiser, 14 Wn. App. 2d at 905-06; see Dike, 75 Wn.2d at 8.

To the extent Geoffrey argues that the doctrine of federal preemption deprived the state

court of subject matter jurisdiction to enter an order that violated the USFSPA, we reject that

argument. Geoffrey cites to Fowlkes v. International Brotherhood of Electrical Workers, Local

No. 76, 58 Wn. App. 759, 764, 795 P.2d 137 (1990), for the premise that preemption affects subject

matter jurisdiction and may be raised at any time. But in Fowlkes, the issue was whether the

National Labor Relations Act gave exclusive jurisdiction to the National Labor Relations Board to

adjudicate a labor dispute. 58 Wn. App. at 763. By contrast, nothing in the USFSPA deprived state

superior courts of their power to hear family law matters and order property distributions,

especially where that jurisdiction is explicitly conferred by the Washington Constitution and RCW

26.12.010.

The Washington Supreme Court recently elaborated on the distinction between errors of

law and lack of subject matter jurisdiction in Ronald Wastewater, 196 Wn.2d at 371-73. There,

the trial court lacked subject matter jurisdiction to enter an order adjudicating the annexation of a

13
No. 53366-9-II

sewer district because the nature of the controversy was annexation, and “annexation authority is

a plenary power enjoyed by the State, which the legislature may delegate to courts by statute.” Id.

at 373. Thus, the statutes related to annexation defined the scope of the court’s jurisdiction in that

area. Here, by contrast, the state constitution defines the superior court’s jurisdiction broadly and

superior courts are statutorily authorized to adjudicate family law claims. WASH. CONST. art. IV,

§ 6; RCW 26.12.010. Orders dividing property in dissolution decrees are within the superior

court’s “proper exercise of authority” and any legal errors in this case were not jurisdictional

defects. Ronald Wastewater, 196 Wn.2d at 373.

b. Inherent power to enter an order

Geoffrey also argues that the spousal maintenance provision is void under Washington law

because the trial court lacked “inherent power” to enter the order. Reply Br. of Appellant at 12

(citing State ex rel. Turner v. Briggs, 94 Wn. App. 299, 302-303, 971 P.2d 581 (1999); Dike, 75

Wn.2d at 7). Following this court’s reasoning in Weiser and departing from this court’s approach

in Tupper, we reject this argument.

As an initial matter, the Ronald Wastewater court clarified that the inquiry as to whether a

trial court had the inherent power to afford particular relief is a “component[] of subject matter

jurisdiction.” 196 Wn.2d at 372. The Supreme Court explained that “the form of relief is limited

by the nature of the particular claim.” Id. For example, where a party brings an action only to quiet

title, the trial “court would exceed its relief authority if it were to issue tax relief.” Id. The authority

to issue a particular form of relief follows the “overall authority to adjudicate the particular claim”

and is a “component[] of subject matter jurisdiction.” Id.

Geoffrey relies on Dike and Turner, but neither case held that a legal error deprives a court

of its inherent power to enter the order. See Dike, 75 Wn.2d at 7 (“‘Where a court has jurisdiction

14
No. 53366-9-II

of the parties and of the subject matter, and has the power to make the order or rulings complained

of, but the latter is based upon a mistaken view of the law or upon the erroneous application of

legal principles, it is erroneous.’” (quoting Robertson v. Commonwealth of Virginia, 181 Va. 520,

536, 25 S.E.2d 352 (1943))); see also Turner, 94 Wn. App. at 303-05 (concluding that the trial

court did not lack inherent power to make a decision where it had both personal and subject matter

jurisdiction and that the relevant orders were not void, even if they were voidable). And in Ronald

Wastewater, the Supreme Court contrasted legal and jurisdictional errors. 196 Wn.2d at 373. Legal

errors occur “where the court has the authority to adjudicate the claim and errs in its application

of law or fact. Whereas jurisdictional deficiencies [occur when] a court act[s] outside of its

adjudicative authority” and “lacks any power to issue relief,” such as ordering annexation in an

area not covered by the legislature’s delegation of annexation authority to the superior courts. Id.

Geoffrey offers no authority for his argument that a court loses its inherent power to enter an order

if the order contains a legal error.

Geoffrey did not appeal the dissolution decree which adopted the language from the

property settlement agreement that Geoffrey now seeks to avoid. Nor does he contest that Heidi’s

motion to enforce the dissolution decree and the 2014 military pay division order involved “(1)

the same subject matter, (2) the same cause of action, (3) the same persons or parties, and (4) the

same quality of persons for or against whom the decision [was] made as did [the] prior

adjudication” leading to the 2008 dissolution decree. See Williams, 171 Wn. 2d at 730. Res judicata

therefore applies and Geoffrey’s subject matter jurisdiction argument fails.

We note that another panel of this court recently came to a contrary conclusion in Tupper.

In that case, a dissolution decree required the husband to pay 50 percent of his United States Social

Security Administration benefits to his former wife, something that is prohibited by federal statute.

15
No. 53366-9-II

Tupper, 15 Wn. App.2d at 800-01. Years later, the wife moved to enforce the decree and the

commissioner granted her motion. Id. at 800. After the husband unsuccessfully moved for revision,

he appealed and this court reversed. Id. Citing Dike, the Tupper panel posited that a judgment may

be void where the court entering the judgment lacks subject matter or personal jurisdiction or

where “it does not possess the inherent power to enter the particular order involved.” Id. at 801.

The Tupper panel conceded that subject matter jurisdiction was satisfied in that case but held the

trial “court did not have the power, inherent or otherwise, to enter the order transferring and

distributing Social Security benefits.” Id. at 806.

First, the Tupper panel did not consider the Washington Supreme Court’s recent

explanation that the power to afford a particular type of relief is a component of subject matter

jurisdiction. Under the Ronald Wastewater reasoning, a court cannot have subject matter

jurisdiction but lack the inherent power to enter an order granting a particular type of relief. 196

Wn.2d at 371-72.

Second, although the Tupper panel attempted to distinguish Weiser, we disagree that

Tupper distinguished Weiser in any meaningful way. The Tupper panel asserted that no

“controlling, adverse United States Supreme Court” precedent prohibited the order in Weiser,

whereas a federal statute clearly prohibited dividing Social Security benefits when the trial court

entered the order in Tupper. 15 Wn. App. 2d at 809 n.7. But when the trial court entered the

property settlement decree in Weiser, Washington law unambiguously prohibited indemnifying

former spouses for disposable military retirement replaced by military disability benefits. Kraft,

119 Wn.2d at 451; Perkins, 107 Wn. App. at 327. We disagree with Tupper’s attempt to find a

distinction on this basis.

16
No. 53366-9-II

Likewise, this case cannot be distinguished from either Tupper or Weiser on this basis

because the trial court entered the order dividing Geoffrey’s military disability retirement after

Mansell, Kraft, and Perkins. Yet Tupper and Weiser came to opposite conclusions, with Tupper

concluding that the trial court lacked inherent authority to enter the dissolution decree in that case

based on legal error making it void ab initio, and Weiser concluding that legal error alone did not

defeat the trial court’s inherent authority to enter the dissolution decree and applying res judicata.

We decline to follow Tupper in this case, following Weiser instead.6 Even a prior

unappealed order that was incorrect at the time it was made may be subject to res judicata so long

as the court had personal and subject matter jurisdiction. Weiser, 14 Wn. App. 2d at 905-06; see

Dike, 75 Wn.2d at 8. Accordingly, whether or not an order complied with the law at its inception

does not determine whether it is subject to res judicata. Indeed, that is the whole point of the

doctrine of res judicata—to establish finality despite later allegations that the prior order was

erroneous. 14A DOUGLAS J. ENDE, WASHINGTON PRACTICE: CIVIL PROCEDURE § 35:21 (3d ed.

2020).

“The dispositive inquiry to determine subject matter jurisdiction is whether the court had

overall authority to adjudicate the particular claim, and the authority to issue a particular form of

relief follows.” Ronald Wastewater, 196 Wn.2d at 372. Yet, the Tupper panel concluded that a

superior court lacks the inherent authority to enter an order where the trial court has made a legal

error and entered an order that is preempted by federal law. The Tupper panel confused legal error

with the superior court’s inherent power to afford particular relief, a component of subject matter

jurisdiction.

6
In re Pers. Restraint of Arnold, 190 Wn.2d 136, 150, 410 P.3d 1133 (2018) (“[W]hen there are
conflicts in the Court of Appeals,” the Washington Supreme Court “resolve[s] them by granting
review, not by telling the later panel to adhere to a decision of an earlier panel.”).
17
No. 53366-9-II

So long as a superior court had the authority to adjudicate the type of controversy involved

in its order, an incorrect decision regarding preemption is a legal error that does not implicate the

court’s subject matter jurisdiction. See id. at 371-72. For example, an order in a marriage

dissolution that incorrectly applies federal law is different from a state court’s invasion of the

National Labor Relations Board’s exclusive jurisdiction over labor disputes. See Fowlkes, 58 Wn.

App. at 763. Nor is an error in a decision regarding federal preemption equivalent to exceeding a

specific legislative grant of jurisdiction, the issue in Ronald Wastewater, 196 Wn.2d at 373. The

courts in Fowlkes and Ronald Wastewater lacked the authority to resolve the issue in question. But

in Weiser, Tupper, and here, the trial courts had the authority under the state constitution and state

statute to divide property in marriage dissolutions, order spousal maintenance, and resolve

questions of federal preemption, even if they made legal errors. The proper remedy in all of these

cases was a timely appeal of the dissolution decree where the legal error was made.

By holding that defects in preemption analysis render a court’s decision void ab initio, as

if the court lacked subject matter jurisdiction, Tupper permits litigants who did not avail

themselves of a timely appeal to revisit the validity of final orders years, or even decades, later.

See Shoop v. Kittitas County, 108 Wn. App. 388, 397-98, 30 P.3d 529 (2001). And because nothing

in Tupper restricted its reasoning to marriage dissolution cases, a litigant can now rely on Tupper

to revisit a final order in any case involving any alleged error regarding federal preemption of state

law. Further, there is no reason Tupper’s analysis would not just as easily apply to issues of state

preemption of local law.

Under Tupper’s reasoning, federal and state preemption decisions would always be

vulnerable to a later argument that the resulting order is void—not just voidable—because the

deciding court got the preemption analysis wrong. If permitted to stand, Tupper threatens the

18
No. 53366-9-II

finality of all preemption decisions, an area of law that touches significant issues, including the

regulation of firearms and controlled substances, state regulation of activities on tribal land, and

state unemployment insurance tax assessments, to name a few recent examples. See, e.g., City of

Edmonds v. Bass, ___ Wn. App. 2d ___, 481 P.3d 596, 598, 601-604 (2021) (whether state law

preempts local firearm storage regulations); Emerald Enter., LLC v. Clark County, 2 Wn. App. 2d

794, 798-99, 413 P.3d 92 (2018) (whether state marijuana decriminalization preempts local zoning

ordinances banning retail marijuana sales); In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161,

171, 430 P.3d 677 (2018) (discussing preemptive effect of federal controlled substances act on

state law); Everi Payments, Inc. v. Dep’t of Revenue, 6 Wn. App. 2d 580, 590-605, 432 P.3d 411

(2018) (whether federal law preempts state’s authority to tax nontribal members doing business

on tribal land); Swanson Hay Co. v. Emp’t Sec. Dep’t, 1 Wn. App. 2d 174, 188-203, 404 P.3d 517

(2017) (whether the Federal Aviation Administration Authorization Act preempts state’s authority

to assess unemployment insurance taxes on certain kinds of payments); Kitsap County v. Kitsap

Rifle & Revolver Club, 1 Wn. App. 2d 393, 399, 403-412, 405 P.3d 1026 (2017) (whether state

law preempts local firearms regulation); and State v. Fisher, 132 Wn. App. 26, 30-31, 130 P.3d

382 (2006) (whether the Uniform Controlled Substances Act preempts localities from setting

penalties for violations of the act). Tupper undermines the finality of all manner of preemption

cases.

We instead conclude, consistent with Weiser, that a trial court decision contrary to federal

law may amount to an error of law that can be corrected on appeal or through a CR 60 motion, but

that does not undermine the trial court’s subject matter jurisdiction. Here, we hold that the trial

court had authority to enter the dissolution decree, including the division of Geoffrey’s military

disability retirement and, thus, the unappealed, final decree has res judicata effect.

19
No. 53366-9-II

C. Whether Other Grounds for Reopening the Judgment Exist

If res judicata applies, the final judgment may be reopened “‘only when specifically

authorized by statute or court rule.’” Weiser, 14 Wn. App. 2d at 903 (quoting Shoemaker, 128

Wn.2d at 120). Under some circumstances, CR 60 provides a basis for relief from a final

unappealed judgment. Geoffrey acknowledges that he never filed a CR 60 motion. And under

RCW 26.09.170(1), spousal maintenance decrees can be modified “only upon a showing of a

substantial change of circumstances,” which Geoffrey has not alleged or shown.

Geoffrey asks this court to invalidate the dissolution decree because he claims the spousal

maintenance provision of the property settlement agreement offends public policy by violating the

prohibition against dividing military disability retirement. This argument fails because it ignores

that modification is available only upon a showing of a substantial change in circumstances, and

he relies on contract law principles that are not applicable here, where the property settlement

agreement was fully incorporated into the final, unappealed dissolution decree. RCW

26.09.170(1). Therefore, we do not revisit the merits of the dissolution decree because res judicata

applies, and so we also do not revisit the terms of the underlying agreement.

Geoffrey suggests that the trial court made a reversible error by analogizing to the Alaska

Supreme Court case of Gross v. Wilson, 424 P.3d 390 (2018), which he points out is not binding

on Washington courts. While it is true that Gross was not binding on Washington courts, the trial

court did not treat it as binding and we review the trial court’s enforcement order de novo. See

Weiser, 14 Wn. App. 2d at 903. The extent to which the trial court analogized to Gross is irrelevant

to our review.

20
No. 53366-9-II

D. Trial Court’s Award of Attorney Fees to Heidi

Geoffrey argues that the trial court erred by awarding attorney fees to Heidi because the

property settlement agreement provided that “[e]ach party shall pay their own costs and [attorney]

fees.” Reply Br. of Appellant at 25. Geoffrey does not contest the trial court’s calculation of the

amount of the award.

“We review statutory attorney fee award decisions for an abuse of discretion.” In re

Marriage of Coy, 160 Wn. App. 797, 807, 248 P.3d 1101 (2011). We defer to the trial court unless

its decision was untenable or manifestly unreasonable. See id. Under RCW 26.18.160, the

prevailing party in an action to enforce a maintenance order is entitled to recover costs and

reasonable attorney fees from the opposing party.

Here, the trial court reasonably interpreted the provision in the property settlement

agreement stating that each party would bear their own costs and attorney fees to refer to the costs

and fees incurred in negotiation of that agreement, not eliminating either party’s right to recover

costs and fees in future enforcement actions under RCW 26.18.160. Heidi was the prevailing party

in the enforcement action. The trial court did not abuse its discretion by awarding Heidi attorney

fees under RCW 26.18.160.

E. Heidi’s Request for Attorney Fees on Appeal

Heidi requests attorney fees on appeal under RCW 26.18.160. Under RAP 18.1(a), this

court may grant attorney fees on appeal “[i]f applicable law grants to a party the right to recover

reasonable attorney fees or expenses on review.” Under RCW 26.18.160, the prevailing party may

recover attorney fees and costs without showing financial need. Fairchild v. Davis, 148 Wn. App.

828, 834, 207 P.3d 449 (2009). Because we affirm the trial court’s enforcement order in Heidi’s

favor, we grant her request for attorney fees on appeal under RAP 18.1(a) and RCW 26.18.160.

21
No. 53366-9-II

CONCLUSION

We affirm the trial court’s 2019 enforcement order and award attorney fees to Heidi on

appeal.

Glasgow, J.
I concur:

Lee, C.J.

22
No. 53366-9-II

SUTTON, J. (concurrence in part and dissent in part)—I concur in result only, and I dissent

in part regarding the discussion of In re Marriage of Tupper, 15 Wn. App. 2d 796, 478 P.3d 1132

(2020), as that case involved different benefits, the division of Social Security benefits not

authorized by law at the time of the dissolution order.

____________________________________
Sutton, J.

23