No. 22149-1-III.The Court of Appeals of Washington, Division Three. Panel Five.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No: 00-3-00332-8. Judgment or order under review. Date filed: 05/01/2003. Judge signing: Hon. Donald W Schacht.
Counsel for Appellant(s), Rene II Erm, Reese Baffney Schrag
Frol PS, 216 S Palouse St, Walla Walla, WA 99362-3025.
Counsel for Respondent(s), Ronald Kurt McAdams, McAdams Ponti
Wernette, 103 E Poplar St, Walla Walla, WA 99362-3028.
SCHULTHEIS, J.
In their decree of marital dissolution, Robert and Bonita Radke each were awarded one-half the value of five investment accounts as of the date of separation, plus the accruals on their respective portions. Mr. Radke later challenged the division of these assets. He argued the intent of the decree was that each party should share the decrease in the value of the accounts caused by the downturn in the stock market. The trial court disagreed. Mr. Radke appeals, contending `accrual’ also means `negative accrual.’ We find the language unambiguous and affirm.
Facts
Mr. and Ms. Radke separated in the summer of 2000 after 20 years of marriage. The divorce was very contentious. The final decree, entered on January 10, 2002, awarded Mr. Radke $155,697 in assets and $42,126 in debts, and awarded Ms. Radke $34,825 in assets and no debts. To equalize the distribution, the trial court also awarded Ms. Radke $40,000. The couple had several investment accounts in Mr. Radke’s name, including accounts with Pruco Life, Prudential Life, Prudential IRA, Prudential Mutual Fund, and Freeman Wellwood Investment Fund. The trial court awarded each party one-half of the value of each account, `[d]ivided per value as of August 15, 2000, plus each party receives their accruals on their respective portions and/or minus the withdrawals by each party on their respective portions.’ Clerk’s Papers (CP) at 7.
Soon after the decree was entered, Ms. Radke’s attorney, Ronald McAdams, wrote Mr. Radke’s attorney, Rene Erm II, and requested information on the investment accounts so the value of the accounts could be ascertained and divided. Receiving no response, Mr. McAdams filed a motion in February 2002 requesting the information on the accounts. On March 8, the trial court ordered Mr. Radke to give Ms. Radke the current account numbers within 10 days and to cooperate in the division of the accounts. The court also awarded Ms. Radke $2,000 for attorney fees and terms.
Multiple letters to Mr. Erm followed. Although Mr. Radke provided sketchy information, he withheld some account numbers and failed to complete documentation for the transfers. In June 2002, Ms. Radke filed a motion for compliance or contempt. After a hearing held in July, the trial court found that Mr. Radke still had not complied with the decree, and imposed additional attorney fees and terms of $1,500. Later that month, Ms. Radke received a check for $15,066 with two account numbers written on it. Mr. McAdams wrote Mr. Erm and asked for verification of the accounts listed and for an accounting of the check amount. Ms. Radke received another check in August 2002 for $11,297, again with no explanation, but with a letter attached stating that the amount was not a full and final payment for the two Prudential Life accounts. She received a third check in August for $28,249 and a fourth check in October for $10,950.
In late October 2002, Mr. McAdams wrote Mr. Erm and stated that his client’s patience had run out. Neither the $40,000 equalization payment nor the attorney fees had been paid, and Ms. Radke still did not have an accounting for some of the checks she had received. Mr. Radke also had not completed the documentation necessary for her to access the investment accounts. Ms. Radke finally received the equalization payment in December 2002 and the information on the investment accounts in January 2003. Based on the value of the accounts as of August 15, 2000, she computed her one-half and sent an accounting to Mr. Erm. When he did not respond, she filed a motion on March 25, 2003 requesting an order to require Mr. Radke’s cooperation in establishing the amount owed to her.
In his response to the motion, Mr. Radke raised for the first time the issue of the declining value of the investments. Arguing ambiguity in the language of the decree, he asserted that the accruals on the values of the accounts also included `negative accruals,’ or losses. CP at 14. Citing the `common knowledge’ that the stock market declined sharply pending the dissolution, he argued that each party’s share of the assets should reflect the loss. CP at 13-14.
On April 9, 2003, the trial court issued a letter ruling. The court found that `accrue’ means to accumulate or increase, not to decrease. CP at 31. Accordingly, the trial court found that the clear terms of the decree awarded Ms. Radke one-half of the value of the accounts as of August 15, 2000 plus any increases on her portion up to the time of division. Accepting Ms. Radke’s calculation of the remaining amount owed through March 31, 2003, the court awarded her $79,691, but denied her request for additional attorney fees and terms. This order was reduced to judgment on May 1, 2003, and Mr. Radke timely appealed. Interpretation of the Dissolution Decree
Mr. Radke contends the provision in the dissolution decree awarding each party one-half the value of the investment accounts as of August 15, 2000 plus accruals is ambiguous and should be interpreted to mean both increases and losses incurred after August 15. Interpretation of a dissolution decree is a question of law reviewed de novo. In re Marriage of Chavez, 80 Wn. App. 432, 435, 909 P.2d 314 (1996). If the decree is clear and unambiguous, we have nothing to interpret. In re Marriage of Bacanegra, 58 Wn. App. 271, 275, 792 P.2d 1263 (1990). When the language of the decree is ambiguous, we attempt to ascertain the intention of the trial court by using general rules of construction applicable to contracts and statutes. In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999); Chavez, 80 Wn. App. at 435-36.
In this case, `accruals’ is not defined in the decree. When a term is not defined, we may rely on its ordinary meaning as stated in a dictionary. One Pac. Towers Homeowners’ Ass’n v. HAL Real Estate Invs., Inc., 148 Wn.2d 319, 330, 61 P.3d 1094 (2002). Relevant to the use of the word here, the dictionary definition of accrual is `an amount of money that periodically accumulates for a specific item (as taxes, interest, or anticipated expenses).’ Webster’s Third New International dictionary 13 (1993). Nothing in the definition refers to a decrease or negative accumulation. Consequently, the clear meaning of the term as used in the dissolution decree is a periodic accumulation of interest on the investment accounts. Use of the term `accruals’ is not ambiguous and therefore does not require further interpretation.
Mr. Radke asserts that in common usage, accruals can mean both positive and negative occurrences. He cites In re Marriage of Ochsner, 47 Wn. App. 520, 523, 736 P.2d 292 (1987) as an example. In Ochsner, the court mentions that the husband’s business `had accrued a running net total loss in excess of $22,000.’ Id. The transitive verb `accrue’ means to `gather, collect, accumulate.’ Webster’s, supra at 13. Ochsner properly used the verb `accrue’ to broadly mean the accumulating of loss. The noun `accrual,’ however, specifically means a periodic increase in value. No other Washington case refers to the accruing of loss, and no case at all speaks of accruals as accumulations of loss.
The trial court properly found as a matter of law that the dissolution decree unambiguously awarded each party one-half the value of the investment accounts plus the periodic increases in value (accruals) of each share after August 15, 2000.
Attorney Fees
Ms. Radke requests attorney fees on appeal based on need (RCW 26.09.140) or on the intransigence of Mr. Radke. Under RCW 26.09.140, an appellate court may order one party to pay the costs to the other party of maintaining the appeal — including attorney fees — after considering the relative financial circumstances of the parties. In re Marriage of Rideout, 150 Wn.2d 337, 357-58, 77 P.3d 1174 (2003). The parties here have not submitted financial statements upon which to make a determination of need or ability to pay. Consequently, attorney fees have not been supported under RCW 26.09.140.
On the other hand, the record shows that Mr. Radke has consistently resisted and delayed division of the investment accounts for over two years. He has been fined terms and attorney fees twice for failure to cooperate with Ms. Radke in complying with the decree. Intransigence is a recognized equitable ground for recovering attorney fees when a party forces another party to go to court to obtain relief. In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). Delay tactics and obstructionism will also support a finding of intransigence. Id. Once intransigence is established, the financial resources of the party seeking attorney fees are irrelevant. Id. The record is replete with evidence that Mr. Radke’s unjustified delay in complying with the decree — and with subsequent orders of the court to comply — resulted in increased legal fees for Ms. Radke. She is entitled to an award of attorney fees and costs on appeal without regard to her need or to Mr. Radke’s ability to pay. Id.
Affirmed. Attorney fees and costs awarded to Ms. Radke.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KURTZ, J. and BROWN, J., concurs.