No. 61844-0-I.The Court of Appeals of Washington, Division One.
March 9, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 99-3-00406-1, Ronald L. Castleberry, J., entered May 14, 2008.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
During Janice Barrett’s marriage to Gordon Middleton, the couple accumulated payments they received from the sale of a business in a specific savings account. At the time of dissolution of their marriage, the decree ordered Middleton to pay Barrett one half of what was in the savings account. Nearly nine years after the decree was entered, Barrett asked a court to enter judgment against Middleton for failing to pay her the amount she should have received from the account. She claimed that her share should have included amounts deposited into the account during the time she and Middleton separated until the decree was entered. The trial court interpreted the decree as requiring Middleton to pay only one half of what was in the account on the date that the decree was entered. We affirm.
Middleton and Barrett married in 1979. During their marriage, they owned a machine shop, which they sold in 1988. They deposited payments from the sale into a savings account at City Bank in Lynnwood, Washington.
According to the dissolution decree, Middleton and Barrett separated in October 1998.[1] When their dissolution decree was entered in May 1999, Middleton had the assistance of counsel, but Barrett did not. The dissolution decree awarded each party one half interest in the “savings account at City Bank, at which account they have been accumulating payments received from the contract sale of their previous business. . . .” The decree also ordered Middleton to pay Barrett $5,500 from his half of the account for her share of a travel trailer they purchased before separating.
In February 2008, almost nine years after the decree was entered, Barrett asked a Snohomish County court to order Middleton to appear and show cause why he should not be found in contempt for failing to comply with the dissolution decree. She claimed that Middleton never paid her for her half of the money in the City Bank account.[2] According to Barrett, the amount Middleton owed her, including interest, was more than $84,000. Barrett also asked the court to issue a prejudgment writ of attachment on Middleton’s share of money that she believed he would receive from his mother’s estate.
A judge denied Barrett’s request for a pre-judgment writ of attachment. A short time later, a commissioner denied Barrett’s motion for contempt, but he referred the matter to arbitration.
Middleton asked a judge to revise the commissioner’s order referring the case to arbitration. In response, Barrett asked the judge to enter a judgment against Middleton for approximately $43,000 for her share of the money in the City Bank account, $7,000 for her attorney fees, and $220 for the arbitration filing fee. She conceded, however, that the remedy of contempt was not available to her.
A judge granted Middleton’s request to revise the commissioner’s ruling and denied Barrett’s motion for a judgment against Middleton. The court ordered the arbitration fee to be refunded and declined to award terms to either party.
Barrett asked the court to reconsider, but her motion for reconsideration was denied. In the order denying Barrett’s request for reconsideration, the court stated that Barrett was not seeking to enforce the dissolution decree. Rather, she sought to go beyond the decree to establish that Middleton deceived her about what amount remained in the City Bank account.
Barrett appeals.
Barrett contends that the trial court misinterpreted the divorce decree and, in effect, improperly modified it. The parties, however, dispute the standard of review on appeal. Middleton argues that we review the order denying Barrett’s motion for reconsideration for an abuse of discretion because the proceedings began as a request for an order of contempt. After Middleton asked the judge to revise the commissioner’s order referring the matter to arbitration, however, Barrett conceded that contempt was not a proper remedy and asked the court to merely enforce the decree. We, therefore, apply the de novo standard of review relevant to the interpretation of a dissolution decree.
Interpretation of a dissolution decree presents a question of law that is reviewed de novo.[3] If a decree is unambiguous, there is nothing for the court to interpret.[4] If the order is ambiguous, the reviewing court applies the general rules of construction applicable to statutes, contracts, and other writings to ascertain the intent of the court that entered the decree.[5] A writing is ambiguous if it is susceptible to two different, reasonable interpretations.[6] Evidence of the circumstances surrounding the creation of an instrument may be admitted to ascertain the intent of the parties.[7]
A court may clarify an ambiguous decree, but may not modify it unless circumstances justify reopening the judgment.[8]
Modification occurs when rights given to a party are extended, or reduced, beyond the scope originally intended; in contrast, clarification defines rights already given.[9]
The decree awarded Barrett:
One half interest in the parties’ savings account at City Bank, at which account they have been accumulating payments received from the contract sale of their previous business to J. Cournoyer, less the sum of $5,500.00, which shall be paid to the wife from the husband’s share pursuant to Exhibit W.[10]
Barrett argues that the decree unambiguously awarded her one half of the value of the payments from the sale of the business, which she and Middleton accumulated in the City Bank account and, therefore, she was entitled to one half of the payments deposited into the account from the time of separation until the decree was entered.
The decree is ambiguous. It is susceptible to two different, reasonable interpretations. Neither of those interpretations, however, is the one offered by Barrett. The decree could be interpreted either to require Middleton to pay Barrett one half of the amount that was in the account when the decree was entered. Alternatively, it could require Middleton to pay Barrett one half of the amount that was in the account at some other time.
Because the decree was ambiguous, the trial court was required to interpret it. Barrett contends that the trial court’s interpretation of the decree effectively struck the language referring to the account as the one in which the couple accumulated payments from the sale of their business. But the court interpreted the decree’s reference to the bank account where payments from the sale of the parties’ business had been accumulated as merely identifying which account was to be divided. Because the decree did not indicate what amount was in the account or the date when the account was to be valued, the court needed to determine on what date the judge entering the decree intended the account to be valued.
Middleton asserts that the trial court properly clarified that the decree required him to pay Barrett one half of the value of the amount that was in the account when the decree was entered. We agree this is the most reasonable interpretation.
“Where one construction would make a contract unreasonable, and another, equally consistent with its language, would make it reasonable, the latter more rational construction must prevail.”[11]
Inferring that the time for valuing the account was the date the decree was entered was reasonable and did not conflict with or modify the terms of the decree. Conversely, interpreting the decree to award Barrett funds accumulated in the account during the period of separation until the decree was entered would have been unreasonable. Such an interpretation would have extended Barrett’s rights beyond the decree’s expressed intent. Nothing in the decree or elsewhere in the record indicates that the court that entered the dissolution decree intended to award Barrett one half of the value of payments deposited into the savings account during the time of the separation. Under these circumstances, the court below properly concluded that the amount to be divided was what was in the City Bank account on the date that the decree was entered.
None of the authorities that Barrett cites requires a different result.
ATTORNEY FEES
Each of the parties seeks an award of attorney fees.
RCW 26.09.140 allows this court, in its discretion, to order a party to pay the other party his or her attorney fees on appeal from a dissolution proceeding. Factors to consider for making such an award include the parties’ relative ability to pay and the merits of the appeal.[12] We may also order an appellant to pay the opposing party’s attorney fees if the appeal is so devoid of merit that there was no possibility of reversal.[13]
Middleton is the prevailing party on appeal. As the trial court indicated, what Barrett truly sought by initiating these proceedings nearly nine years after the decree was entered was to go beyond the decree to establish that Middleton deceived her about the amount that remained in the City Bank account. This matter was not truly to enforce the dissolution decree. Under these circumstances, Barrett’s appeal is frivolous. Therefore, based upon RAP 18.9, we order Barrett to pay Middleton the $7,500 in attorney fees that he incurred on appeal, subject to his compliance with that rule.
We affirm the order and award fees to Middleton. For the Court: