Holaday v. Merceri
| Decision Date | 28 May 1987 |
| Docket Number | No. 16357-4-I,16357-4-I |
| Citation | 49 Wn.App. 321,742 P.2d 127 |
| Parties | Mark S. HOLADAY, Appellant, v. Virginia M. MERCERI, Respondent. |
| Court | Washington Court of Appeals |
Mark T. Patterson, Everett, for Virginia M. Merceri.
Appellant Mark S. Holaday moved for modification of a decree of dissolution against respondent Virginia M. Merceri. Following a bench trial, Merceri prevailed. Holaday's motion for reconsideration was denied, and he appeals. He claims that the trial court erred by allowing Merceri to avoid her child support responsibilities. We affirm.
On May 6, 1980, Mark S. Holaday (husband) and his wife, Virginia M. Holaday (wife) 1, filed a petition for dissolution of their marriage. Incorporated into the petition was a separation agreement providing for division of their The decree of dissolution provided for joint custody of the two children with residential care of the children in the husband. A clause in the separation agreement provided that the husband was responsible for the children's support. However, the clause stated that a permanent change in residential care of the children may necessitate modification of their support. The wife was not required to contribute to the children's support.
property. At the time she entered into the separation agreement, the wife was not represented by an attorney, nor does she remember being advised of her right to have one. The husband claims, however, that his attorney advised her of the right to have an attorney. The wife did not appear at the dissolution proceedings; the decree of dissolution was granted by default judgment
The separation agreement also stated that the parties had attempted a division of property that was "substantially equal." The husband was awarded the family residence, which was worth $69,000, subject to a mortgage of $30,000; a 1975 Ford automobile; and more than one-half of the family furnishings. The wife was awarded a second mortgage on the family residence in the amount of $8,854 together with interest on the unpaid balance at 8 per cent per year payable in 7 years, a 1965 Buick automobile, and less than one-half of the family furnishings.
At the time the 1980 divorce was finalized, the parties' two children were 1 and 3 years of age. The husband worked full-time as a union sprinkler fitter earning about $18 per hour. According to unchallenged findings of fact, in 1980 the husband earned a gross income of $30,600, and the wife earned $585 per month working in a bowling alley. She lived with her father.
On June 11, 1984, the husband filed a petition for modification of the decree of dissolution in which he requested monthly child support and health insurance coverage for the children from the wife. At the time of the modification trial, the husband had remarried. He was still working as a sprinkler fitter, but his employment was more sporadic The wife had also remarried. She earned a monthly gross income of $1,126 working as a bookkeeper. Her new husband was unemployed, but when he was working, he earned a monthly gross income of $2,000 as a truck mechanic. The wife had one stepchild, 18 years old, who lived with her and her husband, but did not contribute to family expenses.
than it had been in the past. According to unchallenged findings of fact, he earned approximately $21 per hour, and his gross income in 1984 was $30,336. He had two stepchildren, ages 8 and 9. His new wife was currently unemployed because she had undergone surgery on her wrist. His own sons had required medical attention for asthma and broken bones, and the youngest son had undergone an operation to have tubes put into his ears. Although the husband's union provided 80 percent medical coverage, the husband spent $1,000 in 1984 on medical bills for his children. In addition, he spent more for food and clothing as his boys grew older. The monthly food bill was approximately $800
Following a bench trial, the petition for modification was dismissed. The husband then moved for reconsideration. His motion was denied, and this timely appeal followed. He claims that the trial court erred (1) by interpreting the separation agreement to impose the entire child support obligation on the husband; (2) by finding that the division of property was disparate against the wife; and (3) by finding no change of circumstances justifying child support against the wife.
Motions for reconsideration are addressed to the sound discretion of the trial court and will not be reversed absent a clear or manifest abuse of that discretion. State v. Scott, 92 Wash.2d 209, 212, 595 P.2d 549 (1979). An abuse of discretion exists only if no reasonable person would have taken the view adopted by the trial court. State v. Henderson, 26 Wash.App. 187, 190, 611 P.2d 1365, review den'd, 94 Wash.2d 1008 (1980).
The husband first claims that the trial court erred by allowing the wife to use the separation agreement to avoid her child support responsibility. He challenges the court's interpretation of paragraph 2F of the separation agreement, which states:
So long as Husband shall have the residential care of the children, he shall be responsible for their support. Should a permanent change of residential care occur, the provisions for child support herein may be modified to reflect the change of circumstances.
He asserts that because the paragraph does not contain the modifier "solely" (i.e., "So long as husband shall have the residential care of the children, he shall be [solely] responsible for their support"), it was not intended to forever bar him from seeking a financial contribution from the mother.
Preliminarily, we note that ambiguities in contract language should be construed most strongly against the drafter. Rouse v. Glascam Bldrs., Inc., 101 Wash.2d 127, 135, 677 P.2d 125 (1984). This agreement was drafted by the husband's attorney and, thus, any ambiguities in the agreement must be interpreted against the husband.
The husband argues that, notwithstanding a contrary interpretation, paragraph 2F is illegal because a natural parent cannot contract away child support obligations. In Washington the coequal responsibility to support dependent children is imposed upon natural parents both by statute, RCW 26.16.205, and by common law. State v. Wood, 89 Wash.2d 97, 100, 569 P.2d 1148 (1977); Hughes v. Hughes, 11 Wash.App. 454, 461, 524 P.2d 472 (1974). It has long been recognized that parents cannot agree to prospectively terminate either parent's obligation to support their children. State ex rel. Lucas v. Superior Court, 193 Wash. 74, 78, 74 P.2d 888 (1937); In re Marriage of Watkins, 42 Wash.App. 371, 710 P.2d 819 (1985), review den'd, 105 Wash.2d 1010 (1986). Custody, support and visitation are always subject to future modification upon showing a substantial change of circumstances. RCW 26.09.170; In re When the divorce decree is silent concerning child support, coequal shares are the rule. Hughes v. Hughes, supra 11 Wash.App. at 461, 524 P.2d 472. However, the court, using its discretion, may impose other than coequal shares.
Marriage of Pippins, 46 Wash.App. 805, 808, 732 P.2d 1005 (1987).
[B]oth the father and mother of minor children are responsible for the support of the children, and ... this coequal obligation remains upon both parents after a divorce, unless the divorce court, in the exercise of its discretion in providing for the support of the children and in making a just and equitable disposition of the property of the parties, determines that some other share should be imposed on either the father or mother.
(Emphasis added.) 11 Wash.App. at 456, 524 P.2d 472.
These principles are applied to separation contracts in RCW 26.09.070(3), which states:
If either or both of the parties to a separation contract shall at the time of the execution thereof, or at a subsequent time, petition the court for dissolution of their marriage, for a decree of legal separation, or for a declaration of invalidity of their marriage, the contract, except for those terms providing for the custody, support, and visitation of children, shall be binding upon the court unless it finds ... that the separation contract was unfair at the time of its execution.
(Emphasis added.)
Applying these principles to the case at bar, the judge at the modification trial correctly concluded that the disparate division of property satisfied the wife's child support obligation. Conclusion of law 2 states:
It was the intent of the parties, which has been carried out by the Decree, that Mrs. Holaday's obligation for support of the minor children be satisfied by the disparate division of the property, and that the only basis for modification was to be a change of the custody to the Respondent. This is the only reasonable interpretation of Findings of Fact 2. F. [entered in the original dissolution proceedings]:
"The Court finds the division of the property in the Separation Contract is of substantial equal value. ["] If We find no infirmity in this conclusion because (1) the court properly recognized that a disparate property division may be the basis for relieving one parent from child support obligations; (2) the court explained how $23,000 (the difference in the husband's and the wife's equity in the house) substituted for child support when invested at 10 percent interest; and (3) the court inferred that changed circumstances may require additional support by the wife--"given the present circumstances of the parties, [the $23,000 difference] is a reasonable amount of support." (Emphasis added.) We thus conclude that the court properly preserved the husband's right to obtain future child support from the wife.
the $23,000 were invested at 10 percent interest, the $23,000 would provide child support for the...
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