IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re the Marriage of:                                No. 74940-4-


VIRGINIA BERRY,                                       DIVISION ONE

                     Appellant,

     and                                              UNPUBLISHED


DAVID BERRY,                                          FILED: January 30, 2017

                     Respondent.



       Cox, J. - Virginia Berry appeals the trial court's order denying her motion

to revise a commissioner's order. The order terminated David Berry's financial

support for their daughter's postsecondary education, which was required under

a prior child support order. Because the child support order is ambiguous

whether suspension or termination of child support is required if the daughter

fails to attend school full-time, termination of child support was not mandated. It

was an abuse of discretion to mandate such termination. The award of attorney

fees to David and entry of judgment in his favor based on the court's erroneous

interpretation of the child support order was also incorrect. We reverse and

remand for further proceedings that are consistent with this decision.

       In June 2007, the trial court entered a dissolution decree, dissolving

Virginia and David Berry's marriage. The court also entered a child support order

regarding their two children, Rachel and Katherine.
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      In 2014, the court modified the child support order to provide for Rachel's

postsecondary education. As a support condition, Rachel had to "enroll in and

attend school full-time." The order further stated terms and conditions under

which support could either be suspended or terminated.

      In the spring 2015 term, Rachel was not a full-time student due to medical

issues. David moved to either suspend or terminate Rachel's support. A court

commissioner granted David's motion and terminated the support.

      Virginia moved for revision, and the superior court judge denied her

motion. The judge also entered a judgment against Virginia for the tuition that

David paid and for his attorney fees. The judge later denied Virginia's motion for

reconsideration.


      Virginia appeals.

                            CHILD SUPPORT ORDER

      Virginia argues that the trial court misinterpreted the child support order

and abused its discretion by denying her revision motion. We agree.

       If a child support order is unambiguous, we interpret it as written.1

However, an order is ambiguous if its terms are susceptible to more than one

reasonable meaning when applied to a particular set of facts.2 When an order is

ambiguous, we attempt to ascertain the trial court's intent by using general rules




       1 In re Marriage of Jess, 136 Wash. App. 922, 926, 151 P.3d 240 (2007).

     2 Queen Anne Park Homeowners Ass'n v. State Farm Fire & Cas. Co.,
183 Wash. 2d 485, 489, 352 P.3d 790 (2015).
No. 74940-4-1/3



of contract construction.3 We also construe orders as a whole and give meaning

and effect to each word.4 A trial court's interpretation of a child support order is a

question of law that we review de novo.5

       We review for an abuse of discretion a trial court's child support decision.6

A trial court abuses its discretion when its decision is manifestly unreasonable.7

The court makes a manifestly unreasonable decision "'if it is outside the range of

acceptable choices, given the facts and the applicable legal standard.'"8

       Kruqer v. Kruger9 is instructive regarding child support order interpretation.

There, an order modifying James and Donna Kruger's dissolution decree

required that James support their two children.10 The order provided that

James's support "'for each child shall continue until age 21 years so long as such

child is . . . engaged in a full time program of higher education . . . ."11 Both



       3 In re Marriage of Thompson, 97 Wash. App. 873, 878, 988 P.2d 499
(1999).

       4 Stokes v. Pollev, 145 Wash. 2d 341, 346, 37 P.3d 1211 (2001).

       5 In re Marriage of Cota, 177 Wash. App. 527, 534, 312 P.3d 695 (2013).

       6 Jess, 136 Wash. App. at 926.

       7 In re Marriage of Horner, 151 Wash. 2d 884, 893, 93 P.3d 124 (2004).

       8id, at 894 (quoting In re Marriage of Littlefield, 133 Wash. 2d 39, 47, 940
P.2d 1362(1997)).

       9 37 Wash. App. 329, 679 P.2d 961 (1984).

       10 id, at 330-31.

       11 Id.
No. 74940-4-1/4



children missed months of school but, from the opinion, it appears that they were

enrolled full-time.12

       James failed to pay child support, and Donna moved to compel payment

for the past due support.13 The trial court ordered that James pay the unpaid

support.14 The court calculated the support to include the period that the children

were enrolled in higher education programs full-time.15

       On appeal, James argued that the trial court misinterpreted the order.16

He asserted that the phrase "'so long as"' meant "'until such time'" rather than

"'during such time.'"17 This court disagreed, stating: "The purpose of providing for

support beyond age 18 clearly was to encourage and aid the children in pursuing

higher education and to decrease any financial disadvantage they might suffer in

this regard as a result of their parents' divorce."18 The court then determined that

James's "more restrictive reading of the clause . . . would not further this

purpose."19 Thus, the court concluded that the trial court did not err by




        2 Id at 331-32.

        3 id, at 331.

        4 id,

        5 id, at 331-32.

        6 id, at 331.

        7 id,

        8 id, at 331-32.

        9 Id. at 332.
No. 74940-4-1/5



calculating the unpaid support to include the period that the children were

enrolled in higher education programs full-time, despite their absences.20

       Here, the threshold issue is whether the child support order is ambiguous.

That is: is it susceptible to more than one reasonable meaning for the

consequences that flow from Rachel's failure to attend school full-time for the

spring term?

      The child support order, in relevant part, provides:

      The parents' obligations to pay for postsecondary educational
      support are strictly conditioned on the requirements ofRCW
      26.19.090 including that Rachel shall enroll in and attend school
      full-time, and must be in good academic standing, as defined by
      the institution. Rachel shall timely, not less than every six months,
      make available all academic records and grades to both parents as
      a condition of receiving postsecondary educational support as set
      forth herein. Failure to comply with any of these conditions shall
      result in automatic suspension of the parents' obligations.

       The parents' obligations for payment of any and all postsecondary
       educational expenses, including living expenses of Rachel Berry,
       their adult child shall automatically terminate without further court
       order upon written verification that Rachel Berry is not enrolled in or
       not attending full-time or not maintaining good academic standing
       in an accredited institution of higher learning.1211

       We conclude that this provision is ambiguous because one set of facts—

Rachel's failure to attend school full-time—could result in two different

consequences: suspension or termination. It is beyond dispute that such

attendance is a condition of David's child support payments. But the violation of




       20 id,

       21 Clerk's Papers at 242-43 (emphasis added).
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this condition has different consequences under the court's child support order.

Thus, the order's terms are susceptible to more than one reasonable meaning.

       Here, the record shows that the court specifically found that the child

support order did not contain "any medical or other reason for reducing [Rachel's]

work load."22 That is true, but irrelevant. The fact remains that the child support

order is ambiguous because it imposes different consequences for Rachel's

failure to attend school full-time.


       We further note that the trial court's interpretation frustrates the

legislature's intent. RCW 26.19.090(3), the postsecondary support statute,

shows a preference for suspension, not termination, if a child fails to comply with

court conditions. This child support order expressly refers to this statute. Yet,

the court's order denying revision is inconsistent with this legislative mandate.

       As we briefly discussed in our reference to the Kruger case, child support

orders must incorporate the best interests of the children involved. It is difficult to

see under the circumstances of this case how Rachel's best interests are served

by the trial court's decision. Terminating Rachel's postsecondary educational

support due to her short lapse in full-time attendance does not serve her best

interests.23

       David argues that the provision is unambiguous and that termination of

Rachel's support is "one possible result" of her failure to attend school full-time.

He specifically argues that the termination paragraph sets forth a limited number

       22 id, at 42.

       23 See also Kruger, 37 Wash. App. at 331-32.
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of circumstances that would result in termination while the suspension paragraph

includes more circumstances. But this argument is unpersuasive for the reasons

we already discussed in this opinion.

       David also argues that the trial court did not abuse its discretion because

the facts supported termination. He contends that Rachel participated in sending

him a false transcript and that her best interest is "not furthered by condoning"

such conduct. For the reasons already discussed, this argument is

unpersuasive.

                                REIMBURSEMENT


      Virginia argues that the trial court erroneously ordered reimbursement to

David for the money he paid for Rachel's tuition for the term she did not attend

school full-time. We agree.

       Here, the trial court entered a judgment against Virginia. The amount

owed included $2,374 that David paid for the fall 2015 term. As we just

discussed, the trial court abused its discretion in denying Virginia's motion for

revision. Thus, we vacate this portion of the corrected order on revision as well.

                                ATTORNEY FEES

                                        Trial


       Virginia argues that the trial court improperly awarded attorney fees to

David. We agree.

       Here, the trial court awarded attorney fees to David although the record

does not demonstrate the basis for this award. Accordingly, we also vacate the

trial court's attorney fees award and remand for reconsideration.
No. 74940-4-1/8



                                        Appeal

       Both parties request attorney fees on appeal. Virginia requests fees under

RCW 26.09.140, claiming that she has need and that David has the ability to pay.

David seeks attorney fees due to Virginia's intransigence. We award fees to

Virginia.

       RCW 26.09.140 provides for reasonable attorney fees in dissolution

proceedings for "maintaining or defending any proceeding under this chapter."

An award of attorney fees under this statute "'must be based upon a

consideration that balances the needs of the spouse seeking fees against the'"

other spouse's ability to pay.24

       Additionally, a party's intransigence is an equitable basis for awarding

attorney fees.25 Courts grant attorney fee awards for intransigence when a party

engages in "'foot-dragging' and 'obstruction'... or simply when one party made

the trial unduly difficult and increased legal costs by his or her actions."26 "'If

intransigence is established, [the court] need not consider the parties'

resources.'"27



      24 Urbana v. Urbana. 147 Wash. App. 1, 16, 195 P.3d 959 (2008) (quoting In
re Marriage of Moody, 137 Wash. 2d 979, 994, 976 P.2d 1240 (1999)); see also
RCW 26.09.140.

       25 In re Marriage of Chandola, 180 Wash. 2d 632, 656, 327 P.3d 644 (2014).

       26 Id, at 657 (alteration in original) (internal quotation marks omitted)
(quoting In re Marriage of Katare, 175 Wash. 2d 23, 42, 283 P.3d 546 (2012)).

      27 In re Marriage of Larson and Calhoun. 178 Wash. App. 133, 146, 313 P.3d
1228 (2013) (Quoting In re Marriage of Wallace, 111 Wash. App. 697, 710, 45 P.3d
1131 (2002)).
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       Here, there is no evidence of Virginia's intransigence. So we decline to

award David attorney fees on this basis.

       Both parties filed financial information, as required by the Rules of

Appellate Procedure. They also filed supplemental argument and evidence.

Based on a thorough review of this record, we conclude that Virginia has

established need and that David has the ability to pay. She is entitled to an

award of fees on appeal, subject to her compliance with RAP 18.1.

       We reverse the Order on Revision and Judgment, the Corrected Order on

Revision and Judgment, and the Order Denying [Virginia's] Motion for

Reconsideration. We vacate the judgment for $2,374 and the award of attorney

fees to David below. We award Virginia attorney fees on appeal, subject to her

compliance with RAP 18.1, and remand for further proceedings consistent with

this opinion.                                               y*                 .




WE CONCUR: