* Marriage Of Clifford Porter, Appellant V. Peggy Porter, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of: No. 57168-4-II
CLIFFORD A. PORTER,
Petitioner,
v. PART-PUBLISHED OPINION
PEGGY A. PORTER,
Respondent.
CHE, J. — Clifford Porter appeals the trial court order that (1) clarified the dissolution
decree by basing Peggy’s1 share of the military retirement on salary increases Clifford earned
during the recall to military service after the dissolution, and (2) denied Clifford’s request for
prejudgment interest and for reimbursement for overpayments made to Peggy between 2012 and
2020. Clifford and Peggy were married from 1977-1994. Clifford served in the military during
the entire marriage. The dissolution decree awarded Peggy a fractional share of Clifford’s
military retirement. After his 2003 retirement as a Lieutenant Colonel, the trial court entered a
Military Qualifying Court Order (MQCO), which assigned Peggy a 30.25 percent interest in the
1 Peggy Porter is now known as Peggy Huckstadt. For clarity, this opinion will use the parties’
first names. No disrespect is intended.
Filed
Washington State
Court of Appeals
Division Two
August 8, 2023
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No. 57168-4-II
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disposable military retired pay—equaling half of the community portion of the military
retirement.
In 2009, the military recalled Clifford to active duty, and he received a promotion to the
rank of Colonel and salary increases. He retired again in 2012. Clifford’s additional years of
service lowered the fractional share of the military retirement that Peggy was entitled to under
the decree. But the MQCO was not amended, resulting in ongoing overpayments to Peggy.
We hold (1) the trial court properly clarified the decree by ruling that Peggy’s share of
the military retired pay included Clifford’s salary increases from the recall to military service,
(2) Clifford impliedly waived his rights to reimbursement prior to June 2020 under the doctrine
of laches, and (3) the trial court did not abuse its discretion by declining to award prejudgment
interest. We affirm the trial court, deny Peggy’s request for attorney fees on appeal, and deny
Clifford’s request for sanctions.
FACTS
Clifford joined the Army in 1976. Clifford and Peggy married the following year.
During the marriage, Clifford attended medical school. In 1994, Clifford and Peggy divorced.
The dissolution decree provided that Peggy was entitled to a fractional share of Clifford’s
military retirement. The trial court provided two alternative formulas to determine that share.
Under alternative one, Peggy’s share equaled 0.5 x (11/the number of years of creditable
military time toward retirement). Alternative one applied if Clifford did not receive credit
toward his military retirement for his time in medical school. Under alternative two, Peggy’s
share equaled 0.5 x (15/the number of years of creditable military time toward retirement).
Alternative two applied if Clifford did receive such credit.
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No. 57168-4-II
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In 2002, Clifford retired from the military. The next year, the trial court entered a
MQCO, which assigned Peggy a 30.25 percent interest in Clifford’s disposable military retired
pay, appearing to utilize the second alternative formula in the decree. That assignment was
50 percent of the community property fraction set out in the decree.
The MQCO defined “military retired pay” as “retired pay paid or to which Member
would be entitled for longevity of active duty and/or reserve component military service and all
payments paid or payable under the provisions of Chapter 38 or Chapter 61 of Title 10 of the
United States Code.” Clerk’s Papers (CP) at 33. The MQCO stated that Peggy agreed that
future overpayments were recoverable from her. The MQCO also contained an acknowledgment
provision that provided, “Clifford A. Porter[] is currently receiving military retired pay, based on
his prior service in the United States Army. The parties further acknowledge that his former
spouse Respondent, Peggy A. Huckstadt (formerly known as Peggy A. Porter), has an interest in
such military retirement benefits.” CP at 32.
In a 2003 letter from Defense Finance and Accounting Service (DFAS) to Clifford,
DFAS stated if Peggy’s entitlement to payments terminated, it was Clifford’s responsibility to
notify DFAS. DFAS allowed retired service members to see their monthly statements as they
became available.
The military recalled Clifford to active duty service during the Afghanistan conflict from
2009 to 2012. During Clifford’s recall to military service, the military stopped issuing retirement
payments to Clifford and Peggy. After Clifford retired a second time in 2012, the military
resumed paying retirement benefits to Clifford and Peggy. In 2012 letter from DFAS to Clifford,
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No. 57168-4-II
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DFAS again informed him that if Peggy’s entitlement to payments terminated, it was Clifford’s
responsibility to notify DFAS.
In May 2019, approximately seven years after DFAS resumed payments to Peggy and
Clifford, Clifford informed Peggy that she was erroneously receiving more than her fair share of
the military retirement due to his years of recall service not being counted. In May 2020,
Clifford sent Peggy a proposed clarifying order, which would have assigned Peggy a 27.273
percent interest in the military retired pay and based that interest on his salary as of his initial
retirement as a Lieutenant Colonel.
In 2022, Clifford moved to clarify the dissolution decree and MQCO, and for
reimbursement of overpayments and prejudgment interest. In the alternative, Clifford asked the
trial court to vacate or modify the MQCO, and issue a military retired pay division order
directing correct payments equaling one-half of the community portion of the military retired pay
to Peggy.
Peggy claimed laches barred the request for overpayments. Peggy emphasized that she
would suffer significant financial damages for having to reimburse Clifford for tens of thousands
of dollars in overpayments. To that end, Peggy maintained that she and her current husband
retired early to assist their aging parents, and their monthly cashflow did not meet their monthly
expenses.
After a hearing on Clifford’s motion, the trial court entered findings of fact. The trial
court ruled that Clifford’s pay and rank as of his second retirement should be used to determine
Peggy’s share of the military retirement because (1) the intent of the dissolution decree supported
such a conclusion, (2) it was Clifford’s previous military service that allowed him to be
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No. 57168-4-II
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promoted in rank, and (3) Peggy did not receive retired pay during Clifford’s recall to military
service. The trial court added Clifford’s three additional years of service to the formula
determining Peggy’s fractional share, which reduced Peggy’s share from 30.25 to 27.273 percent
of the military retirement.
The trial court also ruled that Clifford was entitled to reimbursement for the
overpayments from June 2020 until the amended MQCO was entered, but he waived his right to
reimbursement for overpayments before June 2020. The trial court did not explicitly rule on
whether laches applied. Lastly, the trial court denied Clifford’s request for prejudgment interest
reasoning that granting such an award would not be equitable.
Clifford appeals.2
ANALYSIS
I. SALARY INCREASES DURING THE RECALL TO MILITARY SERVICE
Clifford argues that the trial court erred in ruling Peggy’s military retirement share should
be based on Clifford’s rank at the time of Clifford’s second retirement. Clifford emphasizes that
he agrees with the trial court’s decision to add his three additional years of service to the formula
determining Peggy’s fractional share, which reduced Peggy’s share from 30.25 to 27.273 percent
2 Clifford assigns error to Findings of Fact 3 and 7, but he fails to provide any argument or
citations to the record relating to those assignments of error. See RAP 10.3(a)(6); RAP 10.3(g)
(outlining the requirements for developing assignments of error). Consequently, we decline to
address these alleged errors.
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No. 57168-4-II
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of the military retirement pay.3 Peggy argues that basing the community portion of the military
retired pay on Clifford’s rank and pay as of his original retirement is prohibited by federal law
because she is grandfathered into the former way of calculating military retired pay under federal
law.4 We disagree with Clifford and Peggy.
A. Ambiguity
Clifford argues that the dissolution decree was ambiguous, and therefore, the trial court
could properly clarify the decree. We agree.
We review the interpretation of dissolution decrees de novo. In re Marriage of
Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). Where the decree is ambiguous, we
seek to ascertain the intention of issuing court by using the general rules of construction
applicable to statutes and contracts. Id. at 878. But “[i]f a decree is clear and unambiguous,
there is nothing for the court to interpret.” In re Marriage of Bocanegra, 58 Wn. App. 271, 275,
792 P.2d 1263 (1990).
3 Clifford would like Peggy to receive 27.273 percent of the military retirement based on his
salary as of his initial retirement. This result would cause Peggy to receive less than she did
under the original 2003 MQCO while Clifford gained an increase in military retirement pay
based on both percentage and salary.
4 “In 2017, the so-called ‘Frozen Benefit Rule’ was enacted as part of the National Defense
Authorization Act; this Rule limits disposable marital retired pay to the hypothetical retired pay
of the military spouse as of the date of the divorce.” Anne M. Payne, 172 AM. JUR. TRIALS § 9
(2021). But this so-called rule applies only to spouses divorced after December 23, 2016 and not
yet receiving retired pay at the time of the divorce. See National Defense Authorization Act of
2018, Pub. L. No. 115-91, § 624, 131 Stat 1283 (2017) (modifying 10 USC § 1408 as of
December 23, 2016). Peggy does not point us to any federal law before the enactment of the
Frozen Benefit Rule that would bar using Clifford’s salary as of his initial retirement to
determine the community share of his military retirement pay. As such, we are not persuaded by
her argument.
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If the decree is ambiguous, the trial court may clarify it. Thompson, 97 Wn. App. at 878.
A clarification defines rights the parties already have. Id. In contrast, “[a] decree is modified
when rights given to one party are extended beyond the scope originally intended, or reduced.”
Id. And trial courts do not have authority to modify decrees in the absence of conditions
justifying reopening the judgment. RCW 26.09.170(1).
Where the decree provided that the spouse was entitled to “50 [percent] of Respondent’s
military retirement pension,” the decree was ambiguous because it failed to specify how and at
what point in time the pension was to be divided in half. In re Marriage of Chavez, 80 Wn. App.
432, 434-35, 909 P.2d 314 (1996). Where the decree awarded a securities account to a spouse
but failed to specify the date of the transfer, Division One noted that such an award of securities
is inherently ambiguous because the value of securities accounts fluctuates in value daily.
Thompson, 97 Wn. App. at 879.
Here, the decree assigned Peggy a fractional interest of “the military retirement” to be
determined at a later date. CP at 24. The MQCO clarified the decree by determining Peggy’s
had a 30.25 percent interest in the disposable military retired pay. And the MQCO defined
military retired pay as “retired pay paid or to which Member would be entitled for longevity of
active duty and/or reserve component military service.” CP at 33.
The military retirement language in the decree and the subsequent definition of military
retired pay in the MQCO are ambiguous. Neither specifies whether the military retired pay,
including salary increases, should be determined at the service member’s initial date of
retirement or a subsequent retirement date. The decree also fails to specify whether salary
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No. 57168-4-II
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increases from a mandatory recall to active duty service should be used in determining military
retired pay.
Peggy argues that Clifford is requesting an impermissible modification of the decree, not
a clarification, because any ambiguity in the decree was clarified by the MQCO. We disagree.
The decree grants Peggy a fractional share of Clifford’s military retired pay, but the
decree is not clear whether salary increases from an involuntary recall after the marriage should
be used when determining that pay. The MQCO does not clarify that ambiguity. Determining if
the salary increases from the recall should be used to determine the military retired pay merely
determines the scope of the decree.
Since the decree is ambiguous, we seek to ascertain the intention of the issuing court.
B. Intention of the Issuing Court
Clifford argues that the court intended to grant Peggy half of the community portion of
his military retirement in the dissolution decree. Clifford then argues that his salary increases
from the recall to military service are not part of the community portion of the military
retirement.
1. Provisions in the Decree
In reviewing an ambiguous decree, we seek to ascertain “the intention of the court that
entered it by using the general rules of construction applicable to statutes and contracts.”
Thompson, 97 Wn. App. at 878. When interpreting a statute, we look to the statute’s plain
meaning. Echo Glob. Logistics, Inc. v. Dep’t of Revenue, 22 Wn. App. 2d 942, 947, 514 P.3d
704, review denied, 200 Wn.2d 1020 (2022). In reviewing an ambiguous decree, the court is
generally limited to examining the provisions in the decree. Chavez, 80 Wn. App. at 435-36.
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No. 57168-4-II
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Here, the decree assigned Peggy a fractional share of the military retirement. This
military retirement language is broad and unqualified. Thus, the decree could include any
military retirement pay, including future salary increases. And the formulas used under the two
alternatives are similar to those used to grant a spouse a one-half interest in the community
portion of a pension or military retired pay. See Chavez, 80 Wn. App. at 436.
Clifford argues that the MQCO shows that the court did not intend to include future
salary increases from the recall to military service in the military retirement because the
acknowledgment provision in that order provides,
Clifford A. Porter[] is currently receiving military retired pay, based on his prior
service in the United States Army. The parties further acknowledge that his former
spouse Respondent, Peggy A. Huckstadt . . . has an interest in such military
retirement benefits.
Br. of Appellant at 46 (emphasis added) (quoting CP at 32). But the “based on his prior service”
language merely shows that the military retired pay he was receiving in 2003 was based on his
prior service. That language does not indicate whether the trial court intended for Peggy’s share
of the military retirement to be based on future salary increases due to a recall to active duty
service.
We hold that the trial court intended for Peggy to receive one-half of the community
portion of the military retired pay. The question is then whether the salary increases from
Clifford’s rank promotion during the recall to military service are included in calculating the
community portion of the military retirement.
2. Salary Increases from the Recall and Community Efforts
Pensions are community property “to the extent the marital community contributes the
labor of the spouse.” In re Marriage of Bishop, 46 Wn. App. 198, 200, 729 P.2d 647 (1986). In
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Chavez, we held that the salary increases—but not the benefits—from additional years of service
following a couple’s divorce are included in the community share of a military pension. 80 Wn.
App. at 437.
In In Re Marriage of Bulicek, the parties were married for 22 years, and the husband
worked for the same company during their marriage. 59 Wn. App. 630, 638, 800 P.2d 394
(1990). In the dissolution, the trial court granted the wife a percentage, as-received, amount of
the husband’s pension. Id. at 639. Under this method, the wife’s monthly payout could increase
after dissolution due to the husband’s prospective pay increases. Id. at 638-39. Division One
held that the husband’s future advancements and pay increases at that company were founded on
the 22 years of community effort. Id.
We find Bulicek instructive. Clifford and Peggy were married for about 17 years, several
years less than the parties in Bulicek. Like in Bulicek, Clifford worked for the same employer,
the military, for the entirety of their marriage. Without the prior years of service and prior rank
of Lieutenant Colonel, Clifford likely would not have reached the rank of full Colonel solely
during the three years he served during the mandatory recall to service period. Under these
narrow circumstances, Clifford’s salary increases during the recall to service period were based
on the community’s efforts.
Moreover, had Clifford not initially retired in 2002 but continued working until 2012, all
the salary increases from his hypothetical 2002 to 2012 service would be included in the
community portion of the military retired pay. Clifford’s salary increases from the recall to
military service from 2009 to 2012 are not stripped of their foundation on community efforts
merely because he had an earlier voluntary retirement and was subject to a mandatory recall to
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No. 57168-4-II
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military service. We do not find that distinction meaningful. We hold that Clifford’s salary
increases received during the recall to military service were based on about 17 years of
community efforts, and the salary increases should be used in calculating Peggy’s share of the
military retirement.
Therefore, the trial court properly clarified the decree. Nevertheless, we briefly address
Clifford’s other arguments to the contrary below.
a. Control of the Period in Which Military Retired Pay Would be Deferred
Clifford appears to argue that the community portion of his retired military pay should
not include his salary increases during the recall to military service because he no longer had
control over the period in which his military retired pay would be deferred. We disagree.
Clifford draws a distinction between military retirement and other retirements. He
maintains that military retirement subjects service members to mandatory recall to active duty,
and the military controls that decision entirely, which gives the military control over the timeline
of deferred payments. In contrast, Clifford maintains that in standard retirement plans, the
employee has control over the deferred payments, and the employer cannot recall the employee
to service. Clifford argues this distinction should take this case outside of the line of cases that
included post-divorce salary increases in the community portion of the pension, and therefore,
Clifford’s salary increases during the recall, which occurred years after the divorce, should be
excluded.
We do not find Clifford’s distinction persuasive in this context. Clifford does not cite to
any case that suggests that salary increases from a mandatory recall to military service after
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No. 57168-4-II
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divorce cannot be founded upon community efforts. We decline to adopt Clifford’s argument for
such a distinction in this context.
b. Valuation Problems
Clifford also argues that the community portion of his military retired pay should not
include his salary increases from the recall to service as there were no longer concerns about
valuation and risk sharing. We disagree.
In support of his argument, Clifford emphasizes that awards of pension rights on a
percentage, as-received, basis are to be encouraged because it avoids difficult valuation
problems. Concerns about valuation are relevant to the trial court’s disposition of pension
benefits. Bulicek, 59 Wn. App. at 636-37.
But we are not asked to reconsider the trial court’s initial disposition of pension benefits.
Rather, we are asked to interpret the dissolution decree. Clifford’s argument about valuation
problems is not relevant to the question before us.
c. Indemnification
Clifford argues that the trial court improperly indemnified Peggy for the pay she did not
receive during the recall. We disagree.
In Howell v. Howell, a family court awarded the spouse upon divorce a portion of her
husband’s military retirement. 581 U.S. 214, 216, 137 S. Ct. 1400, 1402, 197 L. Ed. 2d 781
(2017). Thirteen years later, the husband waived a portion of his military retirement to receive
disability benefits, which reduced the wife’s portion of the military retirement. Id. at 219. The
family court subsequently ordered the husband to reimburse or indemnify the spouse for what
she would have received but for the disability waiver. Id.
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Pertinently, federal law allowed state courts to treat “disposable retired pay” as
community property, but excluded from the definition of “disposable retired pay” amounts
deducted as a result of a military member’s waiver to receive disability benefits. Id. at 217. The
United States Supreme Court held that the family court’s indemnification order and all such
orders were preempted under federal law. Id. at 222.
The Court noted that state courts cannot vest that which they lack the authority to give
under federal law. Id. at 221. And the Court emphasized the “dollar for dollar” nature of the
indemnification, and that the family court’s decision rested solely on the need to reimburse the
portion lost due to the election of disability benefits, which was improper under federal law. Id.
at 222-23.
Here, the trial court entered an order concluding that Peggy’s military retirement share
should be based on Clifford’s final rank and salary as of his second retirement because (1) the
dissolution decree supported such a conclusion, (2) it was Clifford’s previous service that
allowed him to increase in rank, and (3) Peggy did not receive retired pay during Clifford’s
recall. This is distinguishable from Howell.
Most importantly, the trial court did not award Peggy anything. The trial court did not
enter an order requiring reimbursement to Peggy—much less an order requiring “dollar for
dollar” reimbursement for the three years of suspended retirement benefits. The trial court did
not modify the decree. Rather, the trial court clarified the decree by determining whether the
salary increases from the recall to military service should be used in calculating Peggy’s share of
the military retirement. Although the trial court should not have considered Peggy’s failure to
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No. 57168-4-II
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receive military retirement that she was not entitled to, the trial court had proper grounds for
clarifying the decree based on the issuing court’s intent.
d. Equity Determination
Clifford argues that the trial court erred by basing its clarification on an impermissible
equity determination. We decline to reach this argument.
Our review is de novo. As such, we stand in the same position as the trial court, and
therefore, we do not address the trial court’s rationale. Thun v. City of Bonney Lake, 3 Wn. App.
2d 453, 466, 416 P.3d 743 (2018).
Consequently, we decline to reach this argument.
The panel has determined that the remainder of this opinion has no precedential value and
should not be published in accordance with RCW 2.06.040.
UNPUBLISHED TEXT FOLLOWS
A majority of the panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder shall be filed for public record
in accordance with RCW 2.06.040, it is so ordered.
II. REIMBURSEMENT
Clifford argues that the trial court erred by concluding that Clifford waived his rights to
reimbursement for overpayments before June 2020. Relatedly, Clifford argues that the trial court
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No. 57168-4-II
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erred by concluding that he was in the best position to correct errors created by his return to
service.5 We disagree.
We review the application of equitable doctrines, like waiver or laches, de novo. In re
Marriage of Tupper, 15 Wn. App. 2d 796, 810, 478 P.3d 1132 (2020). But whether the facts that
support the application of an equitable doctrine have been proven is a question of fact. See
Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 P.3d 879 (2008). Consequently,
we review the trial court’s findings on this issue for substantial evidence. Green v. Normandy
Park, 137 Wn. App. 665, 689, 151 P.3d 1038 (2007). “Substantial evidence is evidence
sufficient to persuade a fair-minded person of the truth of the declared premise.” Id.
“A waiver is the intentional and voluntary relinquishment of a known right, or such
conduct as warrants an inference of the relinquishment of such right.” Bowman v. Webster, 44
Wn.2d 667, 669, 269 P.2d 960 (1954). To impliedly waive a right, the party must act in such a
manner “as to evidence an intention to waive a right, or where his conduct is inconsistent with
any other intention than to waive it.” Id. at 670 (quoting Kessinger v. Anderson, 31 Wn.2d 157,
168, 196 P.2d 289 (1948)).
“Laches is an implied waiver arising from knowledge of existing conditions and
acquiescence in them.” Buell v. Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972). “Laches
consists of two elements: (1) inexcusable delay and (2) prejudice to the other party from such
delay.” State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226, 241, 88 P.3d 375
5 Where findings of fact are mischaracterized as conclusions of law, we review them for
substantial evidence. Real Carriage Door Co., ex rel. Rees v. Rees, 17 Wn. App. 2d 449, 457,
486 P.3d 955, review denied, 198 Wn.2d 1025 (2021). This “conclusion of law” is, in fact, a
“finding of fact,” which we review for substantial evidence.
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(2004). “Mere delay, lapse of time, and acquiescence do not defeat the remedy unless so long
continued that in a particular case its changed condition would make it inequitable to allow
recovery.” McKnight v. Basilides, 19 Wn.2d 391, 401, 143 P.2d 307 (1943). Indeed, “the main
component of the doctrine is not so much the period of delay in bringing the action, but the
resulting prejudice and damage to others.” Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139
Wn.2d 840, 849, 991 P.2d 1161 (2000). The defendant bears the burden to show that laches
applies. Id.
At the trial court, Clifford argued that he was entitled to improperly paid funds from 2012
onward under the theory of unjust enrichment. Peggy argued that Clifford was not entitled to
those funds due to laches. The trial court ruled that Clifford waived his entitlement to
overpayments from the beginning of his second retirement in 2012 to June 2020. But for
whatever reason, the trial court did not specifically address the issue of laches, although the court
appeared to rule as if Peggy proved laches applied.
We affirm based on laches. First, the delay was inexcusable. Clifford did nothing for
seven years. Even when Clifford texted Peggy in 2019, Clifford merely stated that Peggy’s share
appears to be incorrect due to the additional years of service, and that they could work it all out.
Clifford made an explicit and clear request by sending a proposed clarifying order one year after
the text message in June 2020. And it wasn’t until February 2022—10 years after the
overpayments began—that Clifford moved for reimbursements.
Moreover, Clifford knew that he served three additional years in the military and was
promoted during that time. Clifford had access to the monthly statements from DFAS showing
the overpayments to Peggy as they became available. Further, DFAS maintained that it was
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No. 57168-4-II
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Clifford’s responsibility to notify it to stop payments if Peggy’s entitlement to payments ever
terminated and, presumably, if any other circumstance arose that affected Peggy’s entitlement to
payments. Additionally, Clifford’s argument that the overpayments were obvious—or at least
that such payments should have been obvious to Peggy—tends to also show that such
overpayments should have been obvious to Clifford as well. Based on the aforementioned facts,
we hold that substantial evidence supports the trial court’s finding that Clifford was in a better
position than Peggy to correct the MQCO, and that the delay was inexcusable.
Also, Peggy would be prejudiced by allowing recovery after the inexcusable delay. The
seven-year delay was so long that it would make it inequitable for Clifford to recover from
Peggy. Peggy is a 67-year-old living on a fixed income. Peggy is currently accruing a monthly
shortfall and was caring for her and her husband’s aging parents through 2020. Consequently,
based on laches, we hold that the trial court did not err in denying Clifford’s request for
reimbursement for overpayments made before June 2020.
III. PREJUDGMENT INTEREST
Clifford argues that the trial court abused its discretion by denying him prejudgment
interest on his reimbursement because the overpayments can be calculated with exactitude, and
prejudgment interest is not a penalty. We disagree.
We review prejudgment interest awards for an abuse of discretion. Arzola v. Name
Intelligence, Inc., 188 Wn. App. 588, 595, 355 P.3d 286 (2015). “A prevailing party is generally
entitled to prejudgment interest, provided the damages are liquidated.” In re Marriage of
Rockwell, 157 Wn. App. 449, 454, 238 P.3d 1184 (2010). Damages are liquidated where the
“data in the evidence makes it possible to compute the amount with exactness, without reliance
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on opinion or discretion.” Lakes v. von der Mehden, 117 Wn. App. 212, 217, 70 P.3d 154
(2003). Although parties are generally entitled to such interest, courts have discretion to deny
such interest where the claimant engaged in a period of unreasonable delay in completing the
litigation. Seattle-First Nat. Bank v. Wash. Ins. Guar. Ass’n, 94 Wn. App. 744, 761, 972 P.2d
1282 (1999).
Here, the overpayment and the prejudgment interest claim arose in 2012. Seven years
later, Clifford sent a text to Peggy about the overpayment issue. And he did not submit a
proposed amendment to the MQCO until the following year. Clifford maintains that he
discovered the overpayment issue when he hired new legal counsel for his second divorce.
Clifford also emphasizes that the overpayments were obvious, at least with respect to Peggy,
because her garnishment increased $700 a month after he resumed retirement, and she should
have noticed this increase as a certified public accountant.
But the overpayments were not hidden from Clifford. Seven years is an unreasonably
long time to not assert one’s rights regarding, by Clifford’s own characterization, a significant
overpayment. Clifford’s only explanation for such a delay is that he failed to discover it until he
obtained new counsel. Such circumstances constitute unreasonable delay. Therefore, we hold
the trial court did not abuse its discretion by denying Clifford prejudgment interest in this matter.
ATTORNEY FEES
Peggy requests attorney fees under RAP 18.9 because Clifford’s appeal is frivolous. We
deny her request.
RAP 18.9(a) authorizes us to award a party attorney fees as sanctions, terms, or
compensatory damages when the opposing party files a frivolous appeal. “An appeal is frivolous
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No. 57168-4-II
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if, considering the entire record, the court is convinced that the appeal presents no debatable
issues upon which reasonable minds might differ, and that the appeal is so devoid of merit that
there is no possibility of reversal.” Advocates for Responsible Dev. v. W. Wash. Growth Mgmt.
Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). In determining whether an appeal meets
the aforementioned criteria, we resolve doubts in the appellant’s favor. Id.
Although we did not find Clifford’s arguments to have merit, they are not so devoid of
merit as to be frivolous. Consequently, we deny Peggy’s request for attorney fees.
SANCTIONS
On February 1, 2023, Clifford moved for sanctions against Peggy under CR 11, RAP
18.7, and RAP 18.9(a) for violating RAP 2.2, RAP 2.5(d), RAP 5.1(d), RAP 5.1(f), RAP 10.1(b),
and RAP 10.3(5). Clifford asks us to grant him reasonable attorney fees for responding to
frivolous portions of the respondent’s brief, and having to bring his request for sanctions.
CR 11 addresses when pleadings and other legal memoranda are either not well grounded
in fact or in law, or whether such filings are filed for an improper purpose. Bryant v. Joseph
Tree, Inc., 119 Wn.2d 210, 217, 829 P.2d 1099 (1992). “While CR 11 sanctions were formerly
available on appeal under RAP 18.7, a 1994 amendment to RAP 18.7 and 18.9 eliminated the
reference to CR 11 in RAP 18.7 and provided for sanctions on appeal only under RAP 18.9.”
Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 750, 218 P.3d 196 (2009).
We have discretion to order a party to pay sanctions for using the RAPs for the purpose
of delay, filing a frivolous appeal, or failing to comply with the RAPs. RAP 18.9(a). We
exercise our discretion to deny Clifford’s request under RAP 18.9(a).
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No. 57168-4-II
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CONCLUSION
We affirm the trial court, deny Peggy’s request for attorney fees on appeal, and
deny Clifford’s request for sanctions.
Che, J.
We concur:
Lee, P.J.
Price, J.
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