[No. 24498-9-III. Division Three. August 9, 2007.]
In the Matter of the Marriage of PEGGY MARIE BURETA, Respondent, and ROBERT THOMAS BURETA, Appellant.
[1] Divorce — Decree — Construction — Question of Law or Fact — Review. The interpretation of a marriage dissolution decree is a question of law which is reviewed de novo.
[2] Homosexuality — Husband and Wife — Marriage — Restrictions — Opposite-Sex Couples — Validity — In General. This state's long-standing definition of "marriage" as the union of one man and one woman, and the definition of "marriage" in the Defense of Marriage Act (Laws of 1998, ch. 1; codified as RCW 26.04.010(1) and .020(1)(c) and (3)) as a civil contract between a male and a female, are constitutionally valid.
[3] Homosexuality — Husband and Wife — Marriage — Same-Sex Couples — Validity — Washington State. A union between two women does not constitute a lawful marriage under the laws of this state.
[4] Homosexuality — Husband and Wife — Marriage — Same-Sex Couples — Validity — Oregon. Under Oregon law, a union between two women is void as a marriage.
[5] Divorce — Maintenance — Remarriage — What Constitutes — Same-Sex Union. A provision in a marriage dissolution decree specifying that certain pension payments to one spouse shall cease if that spouse remarries is not triggered by a same-sex marriage if the law does not recognize the union as a valid marriage and there is no indication that the word "remarries" in the decree was intended to include unrecognized civil ceremonies with same-sex partners.
[6] Divorce — Decree — Construction — Judicial Amendment. A court may not implant new terms into a divorce decree in the guise of construing it.
[7] Equity — Remedies — Remedy at Law — Effect. A party will not be granted equitable relief in a dispute settled by statutory authority.
[8] Common Law — Remedies — Remedy at Law — Effect. A party will not be granted common law relief in a dispute settled by statutory authority.
[9] Conversion — Elements — Property Interest — Necessity. An action for conversion requires that the aggrieved party have an interest in the property that is the subject of the action.
Nature of Action: A divorced husband sought enforcement of a provision in the divorce decree that his ex-wife's receipt of 40 percent of his monthly military pension would cease if she "remarries or dies." The husband based his claim on his ex-wife's "marriage" to another woman in Oregon. The husband also sought damages for conversion.
Superior Court: The Superior Court for Lincoln County, No. 94-3-02041-7, Joshua F. Grant, J. Pro Tem., on August 16, 2005, entered a judgment denying the former husband's request to terminate the pension payments to his ex-wife.
Court of Appeals: Holding that the ex-wife was still entitled to the pension payments under the divorce decree because her same-sex marriage is not a lawful "marriage" and that the former husband is not entitled to conversion damages or attorney fees, the court affirms the judgment.
Peter S. Lineberger-, for appellant.
Hollan Ilene McBurns-, for respondent.
¶1 BROWN, J. — This marriage dissolution pension payment dispute between Robert T. Bureta and Peggy M. Bureta involves deciding whether their pro se agreement dividing the husband's military pension until remarriage is affected by Ms. Bureta's failed same-sex marriage attempt in Oregon. Mr. Bureta unsuccessfully asked the trial court to stop the pension payment and he appealed. The parties agree that under Oregon law, the attempted marriage was void ab initio. We agree that under current Washington, Oregon, and federal law, same-sex marriages are not permitted and affirm.
FACTS
¶2 The parties dissolved their 24-year marriage in January 1995. They agreed Ms. Bureta would receive 40 percent of Mr. Bureta's monthly military pension payment until Ms. Bureta "remarries or dies." Clerk's Papers (CP) at 20.
¶3 In 2004, Ms. Bureta and her same-sex partner traveled from Spokane to Multnomah County, Oregon, to be married after an official there ordered the county to issue marriage licenses to same-sex couples. But the Oregon Supreme Court held "[the] licenses issued to same-sex couples in Multnomah County . . . were issued without authority and were void at the time that they were issued." Li v. State, 338 Or. 376, 110 P.3d 91, 102 (2005). The Oregon court noted the Oregon constitution now provides " 'that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.' " Id. at 97.
¶4 Mr. Bureta learned of the ceremony and successfully asked the pension administrator to terminate Ms. Bureta's payment. Payments were restored after Ms. Bureta complained she technically was not remarried. The administrator notified Mr. Bureta that the federal government does not recognize same-sex marriages but would terminate Ms. Bureta's payment if he obtained a "court order." CP at 38, 40.
¶5 Mr. Bureta moved to enforce the decree and requested conversion damages. The court denied Mr. Bureta's request, finding "[Ms. Bureta and her partner] were not legally married" therefore termination of the pension payments was not mandated. CP at 111. Filing a memorandum decision, the court also denied both parties request for attorney fees. Mr. Bureta appealed. We stayed the appeal, pending our Supreme Court's decision in Andersen v. King County, ANALYSIS A. Pension Payments ¶6 The issue is whether the trial court erred in denying Mr. Bureta's request to stop pension payments based on Ms. Bureta's alleged remarriage. ¶9 Washington does not recognize a union between two women. Moreover, Oregon considers the marriage void. Li, 110 P.3d at 102. The parties' decree states the pension payments to Ms. Bureta would cease if she "remarries," an unambiguous term. As marriage is defined in Washington, Ms. Bureta has not remarried. The record does not show the parties intended the word "remarries" in their decree to include unrecognized civil ceremonies with same-sex partners. The sole other terminating provision provided for is death. No evidence shows cohabitation would terminate the pension payment. We cannot implant new terms into the parties' agreement. ¶11 Given all, we conclude the trial court did not err in denying Mr. Bureta's request for an order terminating pension payments to Ms. Bureta. B. Conversion Theory C. Attorney Fees ¶13 Mr. Bureta requests attorney fees and costs below and on appeal based on the parties' "hold harmless" provision in their dissolution decree, which relates to necessary fees in resisting collection actions. CP at 17. This provision does not apply to our facts. Moreover, Mr. Bureta has not prevailed. His request is denied. ¶14 Affirmed. SWEENEY, C.J., and KULIK, J., concur.