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In re Marriage of Lee

Court of Appeals of Washington, Division 1

March 20, 2014

In the Matter of the Marriage of GABRIEL Y. LEE, Respondent,
v.
CAROL ANN KENNARD, Appellant.

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 response to the motion to strike, and Kennard filed a reply. Both Kennard and Lee request fees.

The motion to recall the mandate suggests that the opinion in Lee, by virtue of the phrase "unless the separation agreement is set aside, " impliedly overturns In re Marriage of Hulscher. 143 Wn.App. 708, 108 P.3d 199 (2008), and it should be clarified to guide the trial court on remand. In re Marriage of Lee, 176 Wn.App. 678, 693, 310 P.3d 845 (2013). The phrase is merely a reference to the discussion in section II of the opinion, which relied on Hulscher. It was not intended to imply any disagreement with Hulscher. Under a timely motion for reconsideration, the panel would have removed this language as unnecessary. However, the case was mandated and the trial court has already acted on remand. Appeal is a more appropriate procedure than recall of the mandate under the facts here.

We have considered the motions and have determined that both motions should be denied. Now, therefore, it is hereby

ORDERED that the 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

ORDERED that Kennard's request for attorney fees is denied; it is further ORDERED that Lee's request for attorney fees is denied.

APPELWICK, J.

Lee and Kennard separated in 1999 and entered an agreed decree of dissolution in 2000. In 2011, Kennard sought entry of a QDRO with a present day effective date. Kennard also sued to collect spousal maintenance and child support arrears, based on Lee's failure to pay the automatic cost of living increases required by escalation clauses in the 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 support escalator, 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 enforcement of that provision and for award of attorney fees on that issue.

FACTS

Carol Ann Kennard and Gabriel Lee separated on February 15, 1999. Lee's attorney withdrew from representation in January 2000. In February 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 agreement was incorporated into a decree of dissolution. The decree and child support order were 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 "[m]aintenance is otherwise nonmodifiable by either party, unless agreed to in writing by the parties."

The child support order required Lee to pay $875 per month for each of their two children. Like the maintenance escalator, the child support order contained an automatic escalation clause: "The amount of child support will be increased every three (3) years based on the cost of living index, but in no event shall the amount be in excess of $1, 500 per month, per child, nor any less than $875 per month, per child."

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 cost of living increases for spousal maintenance or child support.

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


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