In re the Marriage of Persinger
In re the Marriage of Persinger
Opinion of the Court
¶1 Marc Persinger appeals the dissolution court’s ruling denying his CR 60(b)(5) motion to vacate its decree awarding 50 percent of Mr. Persinger’s pending Department of Labor and Industries (L&I) settlement to Holly Tatum (formerly known as Persinger). Because the transfer is void under RCW 51.32.040(1), we reverse and remand with instructions to vacate that portion of the decree purporting to assign to Ms. Tatum part of Mr. Persinger’s L&I compensation award, with leave to reconsider the overall property division.
¶2 Mr. Persinger and Ms. Tatum married in 1991 and dissolved their marriage in 2013. In their pro se dissolution action, the parties submitted an agreed proposed division of assets and liabilities. The court entered a decree of dissolution, accepting their agreement. Exhibit A to the decree set forth the parties’ division of property and stated that each would receive “50% of L&I settlement and or pension.” Clerk’s Papers (CP) at 32. During the dissolution, Mr. Persinger was in the midst of a workers compensation settlement dispute with L&I regarding benefits related to a 2007 injury. After dissolution, the Board of Industrial Insurance Appeals found Mr. Persinger was “permanently totally disabled” and was entitled to disability compensation. CP at 56. Mr. Persinger asked his industrial insurance appeals attorney about Ms. Tatum’s share of the L&I settlement and was advised to consult a family law attorney because the portion of the decree awarding her 50 percent of the settlement may not be valid.
¶3 On August 21, 2014, Mr. Persinger filed a CR 60(b)(5) motion to vacate the decree, arguing the award to Ms. Tatum of L&I benefits was void. Ms. Tatum responded with a motion for contempt and other postdecree relief. The court denied Mr. Persinger’s CR 60(b)(5) motion concerning the L&I benefits and found him in contempt of the 2013 decree. Mr. Persinger appealed.
ANALYSIS
¶4 The issue is whether the trial court erred in denying Mr. Persinger’s CR 60(b)(5) motion to vacate. Mr. Persinger contends the provision in the parties’ decree relating to the equitable division of L&I benefits is void under RCW 51.32.040(1).
¶5 We review a CR 60(b) motion for abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d
¶6 Under the Industrial Insurance Act, chapter 51.32 RCW, a worker may not voluntarily assign any compensation benefits to another person. RCW 51.32.040(1). Any such transfer is void. In re Marriage of Dugan-Gaunt, 82 Wn. App. 16, 19, 915 P.2d 541 (1996) (citing RCW 51.32-.040(1)); see also 1 Arthur Larson, Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Law § 1.03 [6] (2015) (claimant’s lack of ownership in benefits seen as inability to assign benefits). Mr. Persinger argues this statute voids the portion of the parties’ decree relating to compensation benefits. Statutory interpretation is a question of law, that we review de novo. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). The purpose of statutory interpretation is to determine and give effect to the legislature’s intent. Id. To determine legislative intent, we first look to the statute’s plain language. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
¶7 RCW 51.32.040(1) states, “[N]o money paid or payable under this title shall, before the issuance and delivery of the payment, be assigned, charged, or taken in execution, attached, garnished, or pass or be paid to any other person by operation of law, any form of voluntary assignment, or power of attorney.” The question of whether this statute prohibits assignments in dissolution proceedings has been asked, and answered, in In re Marriage of Dugan-Gaunt, 82 Wn. App. 16.
¶9 Mr. Persinger correctly argues his case is analogous to In re Marriage of Dugan-Gaunt. Both Mr. Persinger and Mr. Gaunt suffered on-the-job injuries and were waiting to settle their claims at the time of divorce. Neither party had an ownership interest in the benefits to grant the court the authority to assign the benefits. Ms. Tatum unpersuasively asserts because payment would not be made directly to her, it would first go to Mr. Persinger, then RCW 51.32.040(1) does not apply. First, payments did not go directly to the wife in In re Marriage of Dugan-Gaunt. Second, a court order awarding a portion of compensation benefits to another party, whether directly or indirectly, violates RCW 51.32.040(l)’s clear mandate, “no money paid or payable under this title shall ... be assigned, charged, or taken in execution, attached, garnished, or pass or be paid to any other person by operation of law.”
¶10 Additionally, in Clingan v. Department of Labor & Industries, 71 Wn. App. 590, 593-94, 860 P.2d 417 (1993), the wife sought an industrial insurance surviving spouse benefit under RCW 51.32.050(6), claiming because her
¶11 Based on both the plain language of RCW 51.32.040 and relevant case law, Ms. Tatum did not have a right to receive a portion of Mr. Persinger’s L&I benefits because it was a statutory entitlement personal to him. Thus, that portion of the parties’ property distribution is void under RCW 51.32.040(1). Accordingly, it was an abuse of discretion for the trial court to deny Mr. Persinger’s motion to vacate.
¶12 We note while an assignment of compensation benefits is void under RCW 51.32.040(1), the statute does not expressly limit a court’s ability to take into account such benefits in making a just and equitable property division. See In re Marriage of Zahm, 138 Wn.2d 213, 222, 978 P.2d 498 (1999) (“while the antireassignment clause of the Social Security Act precludes a trial court from directly dividing social security income in a divorce action, a trial court may still properly consider a spouse’s social security income within the more elastic parameters of the court’s power to formulate a just and equitable division of the parties’ marital property”).
¶14 Reversed. Remanded for proceedings consistent with this opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.