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In re Marriage of Victor P. Himes

May 5, 1997


Appeal from Superior Court of Snohomish County. Docket No: 87-3-02242-2. Date filed: 07/25/95. Judge signing: Hon. David F. Hulbert.

Authored by C. Kenneth Grosse. Concurring: Ronald E. Cox, Mary K. Becker.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Victor Himes died before Frances Himes moved to vacate the dissolution decree he had obtained ending their 27-year marriage, during a large part of which they had been estranged. We must adhere to the ruling in the seminal case of Dwyer v. Nolan, and its progeny. *fn1 Thus, we are required to reverse. After the death of either of the parties the subject matter of a dissolution action is eliminated, the action abates, and the surviving spouse cannot move to vacate. *fn2 This is so despite the fact that Victor obtained the decree by default after filing a false affidavit to the effect that Frances could not be located.

In the seventies, Victor moved permanently to Washington state while Frances remained in Pennsylvania. During their marriage, he had deductions taken for his retirement. After retiring from the military in 1984, Victor received a retirement pension and he elected to participate in the Navy survivor benefit plan, which would pay an annuity to his surviving spouse. In 1987, he obtained a default divorce decree. He did not notify Frances of the dissolution action, rather he obtained service by publication after stating that he made a careful inquiry of friends and relatives as to Frances' location but knew no address to which he could mail a summons to her. This statement appears false; evidence supports the inference that Victor knew Frances' address. For instance, she had lived at the same address for 21 years. Since the dissolution decree was obtained without in personam jurisdiction of her, the family court could only dissolve the marital status and did not distribute any property.

A year before he died in 1994, Victor married Janana MacIntyre Himes. As his spouse, Janana received the surviving spouse military pension. Seeking this pension, Frances persuaded the trial court to vacate the dissolution decree because she did not receive notice and to void the marriage between Victor and his second spouse, Janana, so that Frances, instead of Janana, would be Victor's "surviving spouse" eligible for payments. Janana, Victor's personal representative and a third party defendant to the action, appeals the trial court's decision that the decree was voidable because of fraud, a declaratory judgment that her marriage is invalid, and a summary judgment directing that she reimburse Frances the pension amounts already paid to her. Frances cross-appeals, arguing that the decree was void for lack of jurisdiction, not just voidable.

It is readily apparent that the subject matter of this controversy is not the marriage, but rather, the principal asset of the parties, Victor's surviving spouse pension. The person who directly receives the surviving spouse benefit pension (SBP) is determined by federal law. In order for a surviving ex-spouse to receive SBP, the military service member must have voluntarily elected to designate the ex-spouse. *fn3 In this case, Victor apparently only designated that his surviving spouse should receive the benefit. Although the federal statute governing the SBP preempts state community property law, a surviving ex-spouse has a community property interest in SBP payments under Washington case law. *fn4 While a Washington court may not alter who is the direct beneficiary of the surviving spouse benefit, equitable principles still allow the court to consider this pension when dividing the spouses' property. As our Supreme Court recently stated, "When a court is statutorily unable to award a portion of what might otherwise be a community asset to one spouse upon dissolution, the court may consider the economic circumstances of the parties to justify a disproportionate award of community property." *fn5

Here, we cannot reach issues regarding equitable distribution of the property of this long-term marriage. While none of the parties' property was distributed by the family court at the time of the dissolution decree, including any consideration of the community interest in the annuity, it appears there are no other assets. This action was framed only as one for vacation for the decree of divorce to indirectly allow Frances benefits by virtue of the resulting reinstatement of her marital status at the time of Victor's death. This we cannot allow. Despite Victor's false affidavit, the family court had in rem jurisdiction to dissolve the marriage. *fn6 The decree obtained is thus voidable, not void as Frances contends. This voidable status of the decree results in abatement on the death of one of the parties as is the case here. This result preserves the validity of Victor's second marriage, an important policy under Washington law.

We reverse.


Ronald E. Cox

Mary K. ...

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