MARRIAGE OF VESEY, 25439-5-II (Wash.App. 6-15-2001)

No. 25439-5-II.The Court of Appeals of Washington, Division Two.
Filed: June 15, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 94-3-00942-6, Hon. Nile E. Aubrey, November 24, 1999, Judgment or order under review.

Counsel for Appellant(s), Gregory S. Webley, Attorney At Law, 112 West Meeker, P.O. Box 247, Puyallup, WA 98371.

Counsel for Respondent(s), P. C. Beetham, Eisenhower Carlson Pllc, Wells Fargo Plaza, 1201 Pacific Ave Ste 1200, Tacoma, WA 98402.

John K. Butler, Eisenhower Carlson Pllc, 1215 4th Ave Ste 920, 1201 Pacific Ave, Seattle, WA 98161-1008.

J. DEAN MORGAN, P.J.

The question on appeal is whether a former wife should receive one half of the market value of the family home or, in the alternative, one half of the parties’ equity in the family home. The question turns on the meaning of the parties’ pro se decree of dissolution. Like the trial court, we think the parties intended to divide their equity in the home at the time of dissolution, not the market value of the home at the time of sale. Accordingly, we affirm.

In February 1994, Terri L. Vesey filed a pro se petition for dissolution of her marriage to Greg M. Vesey. She alleged that the family home had a market value of $111,000 and should be awarded to Greg. She further alleged that Greg should pay the mortgage on the home, which was then about $50,000, and that she should receive `[h]er equity in [the] family home.’[1] In September 1994, Terri presented a pro se decree of dissolution. Greg had approved the decree for entry, and the court entered the decree without change. The decree provided that Greg would receive the home; that Greg would pay the mortgage of about $50,000; and that Terri would receive `[h]er equity in family home $30,000.00 or one-half of market value at time judgment is satisfied, whichever is greater, to be paid within five years of the date of decree.’[2]
Although the decree itself said nothing about a judgment, an accompanying `judgment summary’ asserted that Terri had received judgment for $30,000.

In mid-May 1998, Greg sold the family home for $117,250. He paid about $10,000 in costs of sale and about $46,000 to discharge the mortgage. This left $61,268. On May 18, 1998, Greg wrote Terri that he stood ready to pay her one half of $61,268 ($30,600) in full satisfaction of the decree. Terri responded that she was entitled to $58,625, or one half of the total sale price of $117,250. On June 18, 1998, the escrow company paid the $61,268 into court. On November 24, 1999, the trial court awarded one half of the $61,238 ($30,634) to each party. It also awarded Terri interest at 12 percent per annum from June 18, 1998.[3] Terri appealed the award of principal, and Greg cross-appealed the award of interest.

I. PRINCIPAL
The language in issue states that Terri is awarded `[h]er equity in [the] family home $30,000.00 or one-half of [the] market value at time judgment is satisfied, whichever is greater[.]’[4] We must determine whether it is ambiguous, and, if so, construe it.

The word `equity’ is consistent with the reference to $30,000. When used in a financial context like this one, the word `equity’ means net value (i.e., total sale price minus the mortgage and reasonable expenses of sale).[5] In 1994, Terri’s half of the `equity’ in the home would have been about $30,000, for the home was valued at about $110,000 and the mortgage owed on it was about $50,000. Accordingly, it is consistent to say that Terri should receive her `equity’ in the home, but not less than $30,000.

The word `equity’ is inconsistent with the words `market value.’ Just as the word `equity’ means net value (i.e., total sale price minus the mortgage and reasonable expenses of sale) when used in a context like this, the words `market value’ mean gross value (i.e., total sale price without regard to the mortgage and reasonable expenses of sale) when used in a context like this.[6] Thus, the word `equity’ implies that Terri is to receive her share of the home’s net value, while the words `market value’ imply that Terri is to receive her share of the home’s gross value.

The result of this inconsistency is ambiguity. Ambiguity exists when a reasonable person taking a word or phrase in context could assign to that word or phrase two or more reasonable meanings.[7] Giving effect to the word `equity,’ but not the words `market value,’ a reasonable person could say from the language in issue here that Terri was to receive one-half of the parties’ equity in the home (i.e., one half of the sale price minus the mortgage and reasonable expenses of sale), but not less than the greater of $30,000 or one half `of the appreciated value of her equity in the house.’[8] Giving effect to the words `market value,’ but not the word `equity,’ a reasonable person could also say that Terri was to receive the greater of $30,000 or one half of the market value, without regard to the mortgage or expenses of sale.

When an ambiguity appears in a decree, a court must construe it so as to effectuate the intent of the judge who entered the decree.[9] When a judge signs an uncontested decree without changing it, his or her intent is generally the same as the intent of the parties whose proposal or agreement the decree embodies.[10] Here then, we look to the intent of the parties.

The record does not contain an affidavit or other sworn testimony describing what the parties were trying to accomplish in 1994. It does, however, contain a pro se petition for dissolution. In that petition, Terri alleges that she should receive `[h]er equity in [the] family home;’[11] that the value of the home is $111,000; that Greg should pay the mortgage of about $50,000; and that Greg should possess the home after dissolution. She says nothing about `market value’ as opposed to `equity.’ Read together, the petition and the decree show that the parties intended Greg to possess the home after dissolution, and thus also to assume the risk that their equity in the home might diminish between dissolution and sale (i.e., the risk of post-dissolution depreciation). They also show that the parties intended to split whatever equity they had (including any post-dissolution appreciation) when the home was sold. For these reasons, the parties wanted the court to order that Terri receive `[h]er equity in [the] family home,’ with `her equity’ being defined as not less than her equity at dissolution ($30,000) but not more than her equity when her judgment was satisfied. In writing their proposed order, however, they inadvertently and inconsistently used the term `market value.’ To facilitate their intent, a court should now read their decree as granting Terri the right to one half of the $61,268 ($30,634). This is exactly what the trial court did, and we affirm its ruling.

II. INTEREST
Greg claims that the trial court erred by awarding Terri interest at 12 percent on $30,634, from June 18, 1998 to the date she was paid. He talks about having tendered payment to Terri, but he does not show (and we cannot find) that he ever argued such a tender to the trial court. He acknowledges that the trial court had discretion to impose a rate of 12 percent. He has not shown error that he preserved for review.

We decline to award either side its reasonable attorney fees on appeal. We award Greg his costs on appeal, if any, as taxed under the rules. We affirm the trial court’s order of November 24, 1998.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: HOUGHTON, J., BRIDGEWATER, J.