In Re the Marriage of Jennings

Morgan, J.

(dissenting) — The trial court dissolved the parties’ marriage in March 1992. It awarded Michael’s military retirement pay and military disability pay as follows:

The military retirement pay presently being received by the Respondent [husband] is a marital asset to be divided by the Court as property. The parties were married for the entire length of the service member’s active duty and the Petitioner [wife] is therefore entitled to full medical, commissary and *550exchange privileges. The Petitioner is entitled to fifty percent (50%) of the gross retirement pension and shall be paid the sum of not less than Eight Hundred Thirteen Dollars and Fifty cents ($813.50) per month commencing with the month of September 1991. Said allotment of Eight Hundred Thirteen Dollars and Fifty cents ($813.50) per month shall be paid directly to her from the Army Finance Center under the provisions of the Uniformed Services Former Spouses Protection Act and further redefined by PL 101.510. The Petitioner will receive fifty percent (50%) of the gross retirement pay and she should be entitled to a like percentage of the withholding tax credit, as well as cost of living adjustments (COLAS). The portion of the retirement pay waived by the Respondent in order to receive disability compensation from Veteran’s Affairs, is not divisible by the Court and as such should be awarded to the Respondent as his sole and separate property under provisions of Federal Law.[7]

The trial court did not award posttrial maintenance, although it entered judgment for pretrial maintenance that remained unpaid at the time of trial.

When the final decree was entered, Michael was receiving military disability pay in the amount of $318 per month. Later, he secured an increase in disability, up to $2,285 per month,8 and a corresponding decrease in retirement, down to $272.90 per month. As a direct result, Karen began receiving $136 per month, instead of the $813 or more that had been set forth in the 1992 decree.

On October 18, 1995, Karen obtained an order requiring Michael to show cause (1) why the decree should not be vacated pursuant to CR 60(b); (2) why maintenance should not be awarded in an amount equal to one half of the new disability payments; and (3) why the decree “should not be clarified to require [Michael] to continue to pay no less than $813 per month to [Karen].”9 After a hearing, the trial court ordered that the 1992 decree “shall be set aside *551insofar as it relates to the division of [Michael’s] retirement,”10 and that Michael pay Karen “non-modifiable compensatory spousal maintenance”11 in an amount sufficient to give Karen the benefits of the original 1992 decree (i.e., not less than $813 per month).12 Michael then filed this appeal.

I reject out of hand Karen’s first ground for relief. She was seeking to enforce the decree, not set it aside, and CR 60 plays no role in this case.

I reject out of hand Karen’s second ground for relief. A trial court may not resurrect postdecree maintenance that has previously expired, Mason v. Mason, 40 Wn. App. 450, 457, 698 P.2d 1104 (citing Brown v. Brown, 8 Wn. App. 528, 507 P.2d 157 (1973)), review denied, 104 Wn.2d 1017 (1985), nor may it initially award postdecree maintenance more than three years after the dissolution decree has become final.13

I accept Karen’s third ground for relief, even though the trial court did not reach it, because we may affirm on any ground within the pleadings and proof. State v. Michielli, 132 Wn.2d 229, 242, 937 P.2d 587 (1997) (citing Tropiano v. City of Tacoma, 105 Wn.2d 873, 876, 718 P.2d 801 (1986)). In asserting her third ground for relief, Karen asked that the parties’ decree “be clarified to require [Michael] to continue to pay no less than $813 per month to [Karen].”14 A dissolution decree may be clarified, as opposed to modified, when it leaves ambiguous the rights of a party. Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969); Chavez *552v. Chavez, 80 Wn. App. 432, 435, 909 P.2d 314, review denied, 129 Wn.2d 1016 (1996); In re Marriage of Jarvis, 58 Wn. App. 342, 345, 792 P.2d 1259 (1990); In re Marriage of Haugh, 58 Wn. App. 1, 8, 790 P.2d 1266 (1990); see Byrne v. Ackerlund, 108 Wn.2d 445, 453, 739 P.2d 1138 (1987). The decree in this case was ambiguous from and after the time of its entry; it can be read as giving Karen a percentage interest in a fluctuating fund (50 percent of Michael’s retirement pay, however little or much that might be), or a personal judgment against Michael for not less than $813 per month (regardless of the amount of his retirement benefit), with the military to pay on his behalf if the military would so consent. Faced with this ambiguity, the trial court’s task was to ascertain its own intent as of the time it entered the decree, In re Marriage of Gimlett, 95 Wn.2d 699, 704-05, 629 P.2d 450 (1981); Chavez, 80 Wn. App. at 435-36; Jarvis, 58 Wn. App. at 345, and it did not abuse its discretion when, in effect, it ruled that it had originally intended to give Karen judgment for not less than $813 per month.

In reaching this result, I note that the parties’ decree has been final since 1992, and that no one has ever contended it was erroneous when entered. It follows that the parties are bound by its provisions, and that the trial court had authority to construe and clarify those provisions insofar as they were ambiguous.

In reaching this result, I acknowledge that Karen and the trial court used erroneous terminology. The ensuing problem, however, is semantical rather than substantive. Semantically, the trial court erred (1) by saying it was setting aside a decree it was actually enforcing, and (2) by saying it was granting “non-modifiable compensatory spousal maintenance,” when it was really clarifying a judgment previously granted to effect an equitable division of the parties’ property. Substantively, however, the court was entitled to clarify its earlier judgment so that Karen would receive the minimum $813 per month it had originally intended.

*553In reaching this result, I note McHugh v. McHugh, 124 Idaho 543, 861 P.2d 113 (Ct. App. 1993), a very similar case. There, the parties agreed that the wife would receive $360 per month of the husband’s Navy retirement pay. “This amount was not to be increased or decreased ‘for any reason’ except by the application of cost-of-living increases, of which [the wife] was entitled to a pro rata share.” McHugh, 861 P.2d at 114. The agreement was incorporated into a dissolution decree that was entered in April 1990 and first clarified in December 1990. The first clarifying order provided that the wife would receive 18 percent of her husband’s retirement pay, and that the Navy would pay the wife directly. A year or so after the first clarifying order, the Navy increased the husband’s disability pay and reduced his retirement pay correspondingly. As a direct result, the wife began receiving $173 per month instead of $360 per month. The trial court responded with a second clarifying order in which it stated that the wife was entitled to the original $360, plus pertinent cost-of-living increases, even though that amount now represented 40 percent of the husband’s retirement pay. The trial court ruled, in effect, that the dollar amount ($360) had been intended to control over the former percentage amount (18 percent). On appeal, the Idaho Court of Appeals recognized that the trial court was merely enforcing its earlier decree, and it affirmed, just as we should do here.

At bottom, it seems to me that courts should apply the law so as to beget justice. The trial court did that, even though it used the wrong labels. For that reason, I would affirm the trial court’s result, but remand for entry of an order clarifying that the court’s intent in entering the original degree was to require Michael to pay, as property distribution, not less than $813 per month.

Review granted at 137 Wn.2d 1007 (1999).

Clerk’s Papers at 19-20.

Id. at 67.

Id. at 35.

Id. at 56.

Id.

Id. at 69-70.

In passing, I also note that there is no such thing as “non-modifiable compensatory spousal maintenance.” A judgment awarding maintenance is non-modifiable if the parties so agree, RCW 26.09.070(7), but not otherwise. In re Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995). A judgment awarding maintenance must rest on the factors set forth in RCW 26.09.090, which do not include “compensation.” A judgment imposed to effect an equitable property distribution may be “compensatory,” but is it not a judgment for “maintenance.”

Clerk’s Papers at 35.