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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                              FILED

                                                                           June 5, 2012

                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

In re the Marriage of:
                                                )         No.  29650-4-III
JOE HARMON BOWEN,                               )
                                                )
                      Respondent,               )
                                                )
       and                                      )
                                                )         OPINION PUBLISHED 
AMY ANN BOWEN,                                  )         IN PART
                                                )
                      Appellant.                )
                                                )

       Siddoway, J.  --  Amy Bowen appeals the decree entered in the proceeding 

dissolving her marriage to Joe Bowen, assigning error to the trial court's finding that Mr. 

Bowen's military disability retirement pay was not before the court for distribution, its 

unequal division of the parties' marital assets in favor of Mr. Bowen, and its imputation 

of income to Ms. Bowen when calculating child support payments.  Finding no error or 

abuse of discretion, we affirm.

                      FACTS AND PROCEDURAL BACKGROUND 

No. 29650-4-III
In re Marriage of Bowen

       Amy and Joe Bowen married in September 1996.  Ms. Bowen obtained her 

teaching credentials in 1998 and worked as an elementary school teacher until 2004, 

when the first of the couple's two children was born.  Mr. Bowen served in the United 

States Air Force from 1993 until November 2008, when he received a disability 

discharge.  After being discharged, the couple moved from North Dakota to Spangle, 

Washington, so that Mr. Bowen could pursue civilian employment at Fairchild Air Force 

Base.  Funding for this position lapsed in July 2010, leaving Mr. Bowen unemployed.  

       Mr. Bowen filed a petition for dissolution in August 2009 and a final decree was 

entered in December 2010.  Both parties were age 35 at the time of trial and both were 

searching for employment.  While much of the trial focused on parenting plan issues and 

whether Ms. Bowen would be allowed to relocate to Medford, Oregon, with the children, 

this appeal centers on the trial court's property division and child support award.  

       At the time of trial, the parties came before the court with approximately $20,000 

in community liquid assets and $45,000 in community personal property, which largely 

consisted of two vehicles, home furnishings, and power tools.  The trial court valued and 

distributed each item of personal property on the record.  Taking into consideration 

advances to the parties approved during the proceedings and the court's award of 

community property in the decree, the parties' community property was ultimately 

distributed and divided as follows:

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No. 29650-4-III
In re Marriage of Bowen

             Item                          Value                 Wife            Husband

Advances:

    Trust account                    $14,146.94           $10,646.94            $3,500.00

Final Award:

    Misc. personal property            25,785.00           13,475.00            12,310.00

    2004 Silverado truck               20,000.00                                20,000.00

    Thrift savings                     12,379.00             6,189.50            6,189.50

    Trust account                       7,478.00             3,739.00            3,739.00

TOTAL:                               $79,788.94           $34,050.44          $45,738.50

The court assigned $1,837.50 in separate liabilities to Mr. Bowen, $2,165.00 to Ms. 

Bowen, and made each party responsible for their respective attorney fees.  

       The court had ordered Mr. Bowen to pay monthly amounts of $1,400.00 in 

maintenance and $600.00 in child support during the pendency of the action.  In entering 

the decree, it ordered Mr. Bowen to pay a reduced amount of monthly maintenance 

($400.00) for another year.  In calculating Mr. Bowen's monthly child support payments 

for the final child support order, the court imputed $2,693.00 in monthly income to Ms. 

Bowen after finding her to be voluntarily unemployed; on that basis, it imposed a 

standard calculation payment of $637.67 per month on Mr. Bowen. 

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No. 29650-4-III
In re Marriage of Bowen

       The trial court did not explain its reasoning for dividing the property as it did, either 

during its oral ruling or by later entering supportive findings of fact.  Each party retained 

their own separate property, which was modest in comparison to the community estate. 

       A principal point of contention in dividing the property was whether Mr. Bowen's 

military disability retirement pay was before the court for distribution.  Due to an ongoing 

medical condition, Mr. Bowen was deemed permanently disability retired in November 

2008 and discharged with a 30 percent disability rating.  His January 2010 retiree account 

statement admitted into evidence reflected payment to him of $1,140.00 in gross 

retirement pay; that $475.00 of that payment is waived so that he may receive dollar-for-

dollar, tax-free Veterans Affairs (VA) disability compensation; that $65.04 is taken out 

for a survivor benefit plan; and that the remaining $599.96 is taxable income.  

       When questioned about his financial entitlement in light of the disability 

separation, Mr. Bowen testified as follows:

       Q.     . . . [W]hat does [30-percent disability separation] mean financially 
              to you?
       A.     Financially I lost a retirement.  I would have been given a 50-percent 
              retirement.  Because I did not get a retirement, I got a disability, I 
              only receive 30-percent disability separation.
       Q.     Okay. How many years had you served in the military at the time 
              that you were separated from the service?
       A.     I served 15 years, 3 months, to the day.
       Q.     And what requirement, if any, is there to receive retirement?
       A.     You have to continue service through 20 years to the day or more. 
              You do not qualify for a retirement certificate, a president of the 
              United States certificate, or a retirement ceremony, nor do you get a

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No. 29650-4-III
In re Marriage of Bowen

              flag.
       Q.     How much do you receive in the way of this disability payment?
       A.     The disability payment is based on 30 percent at the rank I held at 
              how many years. It equals $1,140 and some cents total before 
              anything is pulled.
       Q.     And what, if anything, is taken from that?
       A.     From that they subtract SBP, Survivor Benefit Program plan; they 
              subtract Delta Dental; they subtract two life insurances; and they 
              subtract TRICARE Insurance for medical insurance; and they also 
              subtract out of that, from the VA side which is a complete separate 
              entity from the Air Force disability, 30-percent disability with the
              Veteran's Administration which is considered tax free.

2 Report of Proceedings (RP) (July 13, 2010) at 240-42. He testified that everything he 

received from the government was disability pay, as opposed to disposable retirement 

pay.  Ms. Bowen took issue with Mr. Bowen's characterization of this benefit, arguing

that the court had the power to divide the non-VA portion between the parties.  

       The court determined Mr. Bowen's retirement income was all disability pay and 

consequently indivisible: 

       Here's what I'm doing now on that.  I'm remembering the testimony of Mr. 
       Bowen.  To the extent that, since he was found to be disabled, he's then 
       disqualified from military retirement.  So that puts him in the category 
       where he can't get that guaranteed income as a serviceperson who fulfills 
       his years of service in order to qualify for that retirement.  So I'm finding 
       it's all beyond the reach of the Court.  So it's not awardable. 

4 RP (Aug. 12, 2010) at 749. Its written findings were in accord. Ms. Bowen challenged 

the trial court's decision on disposition of the disability retirement pay in a motion for 

reconsideration, which the court denied.  

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No. 29650-4-III
In re Marriage of Bowen

       Ms. Bowen appeals.

                                         ANALYSIS

       Ms. Bowen appeals the trial court's determination that Mr. Bowen's military 

disability retirement pay was not divisible, its overall property distribution, and its 

decision to impute income to her when calculating child support.

       The trial court has broad discretion in distributing property in a dissolution action.  

In re Marriage of Gillespie, 89 Wn. App. 390, 398, 948 P.2d 1338 (1997).  We review 

child support orders for abuse of discretion, although bearing in mind that a court must 

impute income to a parent who is voluntarily unemployed in order to prevent a parent 

from avoiding her or his child support obligation.  RCW 26.19.071(6); In re Marriage of 

Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). Trial court decisions in a dissolution 

action will seldom be changed upon appeal -- the spouse who challenges such decisions 

bears the heavy burden of showing a manifest abuse of discretion on the part of the trial 

court.  In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985).  

       A trial court abuses its discretion if its decision is manifestly unreasonable or 

based on untenable grounds or untenable reasons.  In re Marriage of Littlefield, 133 

Wn.2d 39, 46-47, 940 P.2d 1362 (1997).  A decision is manifestly unreasonable "if it is 

outside the range of acceptable choices, given the facts and the applicable legal standard; 

it is based on untenable grounds if the factual findings are unsupported by the record; it is 

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No. 29650-4-III
In re Marriage of Bowen

based on untenable reasons if it is based on an incorrect standard or the facts do not meet 

the requirements of the correct standard."  Id. at 47.  

                                               I

       Ms. Bowen takes issue with the trial court's determination that Mr. Bowen's 

military disability retirement pay was not subject to distribution.  She contends that while 

his VA disability payments are not divisible, the balance of his retirement pay was 

improperly excluded by the court as disability pay.  

       Other state courts have recognized that the issue of whether disability retirement

benefits are apportionable is a mixed question of law and fact, subject to de novo review.  

See, e.g., Marriage of Davies v. Beres, 224 Ariz. 560, 562-63, 233 P.3d 1139 (Ct. App. 

2010).  This is an appropriate way to characterize our review, given that the task at hand 

involves taking undisputed evidentiary facts and applying a statutory scheme.  See Quinn 

v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 725, 225 P.3d 266 (2009) 

(Schultheis, C.J., dissenting) (recognizing that "[t]his court reviews de novo the trial 

court's interpretation and application of a statute to undisputed facts").

       State courts may divide military retired pay only as authorized by the Uniformed 

Services Former Spouses' Protection Act (USFSPA).  10 U.S.C. § 1408(c)(1); Mansell v. 

Mansell, 490 U.S. 581, 589, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989).  Under the 

USFSPA, a dissolution court may treat military retirement pay as marital property subject 

                                               7 

No. 29650-4-III
In re Marriage of Bowen

to division in accordance with the law of the jurisdiction.  10 U.S.C. § 1408(c)(1).  

However, only "disposable retired pay" may be apportioned by a divorce court.  10 

U.S.C. § 1408(c)(1); Mansell, 490 U.S. at 585-86; In re Marriage of v. Perkins, 107 Wn. 

App. 313, 320, 26 P.3d 989 (2001).  "Disposable retired pay" is defined to exclude any 

retired pay that a disability retiree has waived in order to collect veteran's disability 

benefits.  10 U.S.C. § 1408(a)(4)(B).  In order to prevent double dipping, a disability 

retiree collecting veteran's disability benefits is required to waive an equal amount of his 

or her retired pay, but because the former benefits are nontaxable, the retiree increases his 

or her after-tax benefits by collecting veteran's benefits and waiving retired pay.  

Mansell, 490 U.S. at 583; 38 U.S.C. § 5305.  Ms. Bowen recognizes that the waived 

retired pay amount is deducted in computing disposable retired pay.

       But "disposable retired pay" is reduced by other amounts as well, including, under 

10 U.S.C. § 1408(a)(4)(C), amounts which, 

       in the case of a member entitled to retired pay under chapter 61 of this title, 
       are equal to the amount of retired pay of the member under that chapter 
       computed using the percentage of the member's disability on the date when 
       the member was retired (or the date on which the member's name was 
       placed on the temporary disability retired list).

Chapter 61 of title 10 of the United States Code (10 U.S.C. §§ 1201-1222) governs 

retirement or separation from the military for physical disability.  It provides that retired 

pay is computed under § 1401 of title 10, which in turn provides two ways to compute 

                                               8 

No. 29650-4-III
In re Marriage of Bowen

retired pay.  One is to compute the pay using the percentage of disability on the date of 

retirement.  See 10 U.S.C. § 1401(a).  The other way to compute retired pay is to take the 

member's retired base pay and multiply it by a service percent multiplier, which in the 

case of Mr. Bowen, whose service was active duty, would be 2.5 percent for each year of 

active duty service.  Id.  The method of computation is at the service member's choice.  

Id.  The percentage of disability method of computation would tend to be more favorable 

as the disability becomes more serious, the member has fewer years of service, or both.  

The 2.5 percent method, by contrast, would tend to be more favorable for longer-serving 

members, having lesser disabilities, or both.  It would appear that the reason for allowing 

a disability retiree to reduce disposable retired pay by the amount of retired pay computed 

using his or her disability percentage is because it tends to reflect core disability 

compensation, without the "kicker" for length of service reflected in the 2.5 percent 
method.1

       The parties did not carefully frame this issue for the trial court.  Neither 

specifically discussed the USFSPA, Mr. Bowen's retired pay options and choice, or even 

       1 At least one other jurisdiction has recognized that a disability retiree's disposable 
retired pay excludes the percentage that the retiree receives or would have received using 
his or her disability percentage.  See In re Marriage of Wherrell, 274 Kan. 984, 995-96, 
58 P.3d 734 (2002) (concluding that chapter 61 disability retirees may potentially receive 
both disability and retirement pay, and that portion of the benefit based upon disability is 
excluded from the definition of disposable retired pay under 10 U.S.C. § 1408(a)(4)(C)).

                                               9 

No. 29650-4-III
In re Marriage of Bowen

how much if any of Mr. Bowen's retired pay could be considered disposable retired pay.  

Instead, Ms. Bowen argued in a motion for reconsideration below, as she does on appeal, 

that the portion of Mr. Bowen's pension not waived to receive VA disability benefits is 

disposable retired pay and therefore divisible.  This argument considers only the retired 

pay waiver deduction at 10 U.S.C. § 1408(a)(4)(B) and completely ignores the deduction 

for core disability-related retired pay provided at § 1408(a)(4)(C). 

       Ms. Bowen also argues, inconsistently, that "70% [of Mr. Bowen's pension] 

should have been distributed and 30% not," since he was found to be 30 percent disabled.  

Br. of Appellant at 13.  But this argument ignores how disability retirement benefits are 

calculated, as evidenced by the fact that Mr. Bowen's VA waiver alone is more than 40 

percent of his total payment.  She also argues incorrectly that because all disability pay is 

exempt from taxation and Mr. Bowen's pension is partially taxed, the taxable portion is 

not disability pay.  Only disability benefits received from the VA are tax free (hence the 

need for a waiver), 38 U.S.C. § 5301.  The USFSPA's definition of disposable retired pay 

is not concerned with whether the benefits are taxed and is reduced by taxable 

components.  She offers other rationales on appeal for disputing Mr. Bowen's 

characterization of his retired pay that were not raised in the trial court and that we will 

not consider.  RAP 2.5(a).  

       Mr. Bowen testified that his total benefits received were "based on 30 percent at 

                                               10 

No. 29650-4-III
In re Marriage of Bowen

the rank I held at how many years" and that "[a]bsolutely none" of his benefits could be 

considered disposable retired pay under the USFSPA.  2 RP (July 13, 2010) at 241, 308.  

Ms. Bowen offered no evidence from which to verify or disprove his testimony.  While it 

is possible that Mr. Bowen misunderstood or misrepresented how his payments were 

calculated, there is no evidence in the record that contradicts his testimony and the trial 

court found him to be a credible witness.  

       The record would be insufficient to support the trial court's ruling if it were not for 

Mr. Bowen's testimony regarding the nature of his benefits.  Since he effectively testified 

that his benefits were calculated using his percentage of disability, it was proper to 

conclude that, pursuant to 10 U.S.C. § 1408(a)(4), all of his retired pay should be 

subtracted in calculating disposable retired pay.  Whether actually correct or not, the only 

evidence in the record that bears on the amount of Mr. Bowen's retirement pay that was 

disposable supports the trial court's finding that none of it was before the court for 

distribution.  

       Affirmed.

       The remainder of this opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions.  RCW 

2.06.040.

                                               II

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No. 29650-4-III
In re Marriage of Bowen

       Ms. Bowen next claims that the trial court's failure to enter findings to support its 

unequal property award and its asserted disregard of the statutory factors guiding property 

distribution amounts to an abuse of discretion.  She exaggerates the disparity in net 

distributions to the parties as a 97/3 split in favor of Mr. Bowen by reducing her net 

award by the attorney fees that she incurred in the dissolution proceedings while ignoring 
Mr. Bowen's liability for his own attorney fees.  Br. of Appellant at 9.2  

       When dividing marital property, the trial court is to make a "just and equitable"

division after considering all relevant factors, including (1) the nature and extent of the 

community property, (2) the nature and extent of the separate property, (3) the duration of 

the marriage, and (4) the economic circumstances of each spouse at the time the division 

of property is to become effective.  RCW 26.09.080; In re Marriage of Rockwell, 141 

Wn. App. 235, 242-43, 170 P.3d 572 (2007).  The parties' relative health, age, education, 

and employability are all relevant factors that may be considered.  Rockwell, 141 Wn. 

       2 Anticipating criticism of her characterization, she justifies adjusting the 
distribution to include only her own fees with the argument that Mr. Bowen "had a 
chance to place the amount of his fees owed to [his attorney] in the Decree but chose not 
to do that, rather opting simply to put nothing in that description.  It is therefore 
somewhat disingenuous now for him to argue that he has fees commensurate with Ms. 
Bowen when there is nothing in any of the record or pleadings to show what that was."  
Br. of Appellant at 9 (emphasis added).  This is hardly a persuasive justification for Ms. 
Bowen's treating Mr. Bowen as if he had incurred no fees at all, however.  While no 
evidence was presented as to his final fees, testimony at trial established that Mr. Bowen 
had incurred $11,500 in fees prior to trial.  2 RP (July 13, 2010) at 303, 306.

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No. 29650-4-III
In re Marriage of Bowen

App. at 248.  In a long-term marriage of 25 years or more the trial court's objective is to 

place the parties in roughly equal financial positions for the rest of their lives, and to that 

end may make a disproportionate distribution of community property if necessary to 

address disparities in the parties' health, age, or employability; in marriages of a shorter 

duration, as here, there is generally less need for a disproportionate distribution.  Id. at 

243. 

       On appeal, the trial court is not held to a standard of mathematical precision, but to 

the requirement that the court dispose of the property in a just and equitable manner 

considering all of the circumstances.  In re Marriage of Konzen, 103 Wn.2d 470, 477-78, 

693 P.2d 97 (1985); see also In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 

481 (2001) (trial court is not required to divide community property equally).  In order to 

justify reversal, the appellant must show that the trial court's property allocation created a 

"patent disparity" in the parties' economic circumstances.  Rockwell, 141 Wn. App. at 

243; In re Marriage of Bocanegra, 58 Wn. App. 271, 276-77, 792 P.2d 1263 (1990).  

       Ms. Bowen contends that while the trial court was permitted to make an unequal 

distribution, its failure to state a basis for the disproportionate award amounts to reversible 

error.  She repeatedly cites Rockwell for its ostensible holding that a trial court is required 

to enter findings supporting a disproportionate distribution, but nothing in Rockwell obliges 

the trial court to make such findings.  Rockwell, 141 Wn. App. at 242-43.  

                                               13 

No. 29650-4-III
In re Marriage of Bowen

       Neither RCW 26.09.080 nor case law requires the trial court to enter written

findings on the statutory factors, although it must be evident from the record that the trial 

court actually considered them.  In re Marriage of Steadman, 63 Wn. App. 523, 526, 821 

P.2d 59 (1991).  In this case, the record reveals that the court considered the factors.  It 

acknowledged the length of the Bowens' marriage and discussed the parties' histories 

before making its oral ruling.  It carefully assessed each item of the parties' community 

and separate property on the record.  The record also reveals that the parties were clear in 

identifying for the court their respective economic situations.

       In reality, the trial court made a 65/35 division of what remained of the community

assets and liabilities in favor of Mr. Bowen, as Ms. Bowen acknowledged in the trial 

court.  In light of the nature of the property, Ms. Bowen's age, college degree, her earlier

receipt of funds from the parties' trust account, Mr. Bowen's medical disability and 

unemployed status, and the court's decision to award Ms. Bowen temporary maintenance, 
we cannot say this allocation amounts to a patent disparity.3  

                                               III

       Finally, Ms. Bowen assigns error to the trial court's decision to impute income to 

her for purposes of calculating Mr. Bowen's child support payments.  She argues that it 

       3 The trial court is permitted to consider the amount of maintenance it intends to 
award when making its property distribution.  In re Marriage of Crosetto, 82 Wn. App. 
545, 559, 918 P.2d 954 (1996).

                                               14 

No. 29650-4-III
In re Marriage of Bowen

was unreasonable for the court to find her voluntarily unemployed while simultaneously 

concluding that she was in need of temporary maintenance, and argues that no income 
should be imputed until her maintenance ends.4 Br. of Appellant at 15.  

       RCW 26.19.071(6) sets the standards for calculating and imputing income when 

determining child support; it provides in pertinent part:

       The court shall impute income to a parent when the parent is voluntarily 
       unemployed or voluntarily underemployed.  The court shall determine 
       whether the parent is voluntarily underemployed or voluntarily unemployed 
       based upon that parent's work history, education, health, and age, or any 
       other relevant factors. . . .  Income shall not be imputed for an 
       unemployable parent.

We review a trial court's finding of voluntary unemployment for substantial evidence.  In

re Marriage of Didier, 134 Wn. App. 490, 497, 140 P.3d 607 (2006).

       Ms. Bowen essentially contends that she cannot be considered voluntarily 

unemployed where her situation is so dire that the trial court felt a temporary 

maintenance award was justified.  This argument finds no support in the law, and she 

provides us with no supporting authority.  Ms. Bowen is not rendered unemployable, and 

therefore exempt from the imputation of income, simply because she receives 

maintenance.  To the contrary, the record reflects that she is highly employable.  By her 

       4 We note that Ms. Bowen did not challenge imputation of income at trial or raise 
it in her motions for reconsideration.  While we need not address it, we choose to do so.  
RAP 2.5(a).

                                               15 

No. 29650-4-III
In re Marriage of Bowen

own admission in the trial court, maintenance was ordered temporarily, "presumably for 

rehabilitation or assistance until I find employment." Clerk's Papers at 416.  The trial 

court's finding of voluntary unemployment was clearly supported by substantial 

evidence.

                                               16 

No. 29650-4-III
In re Marriage of Bowen

       Affirmed.

                                                _________________________________
                                                Siddoway, J.

WE CONCUR:

___________________________________
Korsmo, C.J.

___________________________________
Brown, J.

                                               17