Opinion
No. 37271-1-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 01-3-01454-5, John Jarrett, J. Pro Tem., entered January 3, 2008.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
Michele Walpole (formerly Snyder) appeals the trial court's order terminating her spousal maintenance based on her remarriage. She argues that Mitchell Snyder's payments constituted a property division, not spousal maintenance. Holding that the payment provision is ambiguous, we reverse and remand for further proceedings.
FACTS
Snyder and Walpole executed a separation agreement, later incorporated into their dissolution decree, that the trial court approved on September 17, 2002. As part of the agreement, Snyder and Walpole divided their property, set spousal maintenance, and distributed liabilities.
Although the separation agreement was later incorporated into the dissolution decree, for clarity we refer to the document as the agreement.
In May 2002, Snyder's and Walpole's Olympia residence was encumbered by $233,000, the remaining balance of the mortgage used to purchase the home. A second mortgage, with a balance of $114,000, also encumbered the house. Funds from the second mortgage were used in part to purchase a Tumwater investment property. Under the agreement, Walpole was awarded the residence and Snyder was awarded the investment property.
Approximately $35,000 of the second mortgage was used toward the investment property.
The agreement also included two provisions labeled as spousal maintenance. Section 1(a) required Snyder to pay Walpole spousal maintenance until 2004. Section 1(b) obligated Snyder to pay additional spousal maintenance of $971 per month to supplement Walpole's income "because of a second mortgage that encumbers the residence." Clerk's Papers (CP) at 27. Section 1(b) further provided that the $971 per month payments would continue if Walpole sold the residence because she would likely incur a new mortgage obligation. Finally, the $971 per month payments were to continue until either party's death or until the set amounts were paid, whichever occurred first. The agreement allowed Snyder the option of terminating his $971 per month payment obligation by paying a lump sum of the principal due on the second mortgage to either Walpole or the lender. The parties did not include a provision indicating whether the $971 per month payments would continue upon Walpole's remarriage.
The section also set a $700 monthly child support obligation.
Under the agreement, Walpole remained liable for community real property distributed to her, including the first mortgage, but not the second mortgage liability distributed to Mitchell Snyder. If Walpole fell more than 60 days behind on the second mortgage, Snyder was allowed to pay the $971 per month payment directly to the lender. Snyder remained liable for the investment property. He could also petition the trial court to order Walpole to cure the default or sell the property.
After Walpole remarried in June 2007, Snyder moved to terminate spousal maintenance. Applying RCW 26.09.170(2), the trial court granted his motion.
RCW 26.09.170(2) provides in part: "Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon . . . the remarriage of the party receiving maintenance."
Analysis
Walpole contends that the agreement is ambiguous because the $971 monthly payment, labeled as spousal support, more closely resembles a property division that does not terminate on remarriage. She argues the trial court erred by finding the agreement clear on its face.
In reviewing a modification order, we determine whether the trial court made an error of law. In re Marriage of Hulscher, 143 Wn. App. 708, 713-14, 180 P.3d 199 (2008). Under Washington law, an instrument is ambiguous if it is subject to more than one reasonable interpretation. Wm. Dickson Co. v. Pierce County, 128 Wn. App. 488, 493-94, 116 P.3d 409 (2005).
Walpole does not dispute the trial court's findings of fact, and we consider them verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Relying on Thompson v. Thompson, 82 Wn.2d 352, 510 P.2d 827 (1973), Walpole claims that the payments are a property division that cannot be modified. In Thompson, the parties agreed to a $500 per month "alimony" payment for the duration of the wife's life. 82 Wn.2d at 353. On appeal from the denial of a modification petition, our Supreme Court found the agreement ambiguous because the parties used the term "alimony" for the payments that had "the character of a property division." Thompson, 82 Wn.2d at 357. The court looked to the parties' intent and the circumstances surrounding the parties' agreement. Thompson, 82 Wn.2d at 358. It noted that the payments came from a former community business property and were to continue until the wife's death. Thompson, 82 Wn.2d at 358. The court concluded that the parties intended a property division and likely designated the division as alimony only for tax purposes. Thompson, 82 Wn.2d at 358-59.
The term "maintenance" replaces the term "alimony." RCW 26.09.090.
A similar ambiguity exists here. Although the agreement designates the $971 monthly payment as spousal maintenance, the second mortgage liability is awarded to Snyder and permits him to pay the second mortgage in full to the lender in lieu of payments to Walpole. This more closely resembles a property division. Moreover, Snyder remained liable for obligations relating to the investment property. These obligations include the second mortgage on the house awarded to Walpole that Snyder and Walpole used to buy the investment property. Read as a whole, the agreement is ambiguous about the character of the payments from Snyder to Walpole. Thus, we reverse and remand for the trial court to determine whether the parties intended to divide property or set maintenance.
Because we reverse, we do not address Walpole's other arguments.
Attorney Fees
Both parties request attorney fees. Under RCW 26.09.140, we have discretion to award attorney fees in addition to statutory costs. Snyder also requests costs under RAP 14 for Walpole's frivolous appeal. We decline to award fees or costs to either party for this appeal.
Reversed and remanded.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.