Marriage of Allen, In re, 17314-0-II

• Decision Date: 25 July 1995
• Docket Number: No. 17314-0-II,17314-0-II
• Citation: 78 Wn.App. 672,898 P.2d 1390
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Shirley R. ALLEN, Respondent, and Loren Keith Allen, Appellant, First Independent Bank, Stevenson Branch, Garnishee Defendant.

Page 672

78 Wn.App. 672

898 P.2d 1390

In re the MARRIAGE OF Shirley R. ALLEN, Respondent and Loren Keith Allen, Appellant First Independent Bank, Stevenson Branch, Garnishee Defendant.

No. 17314-0-II.

Court of Appeals of Washington Division 2.

July 25, 1995.

Robert D. Weisfield, Bingen, WA, for appellant.

Kenneth W. Weber, Weber & Gunn, Vancouver, WA, for amicus curiae.

Deborah M. Phillips, Phillips Reynier & Sumerfield, Hood River, OR, for respondent.

FLEISHER, Judge.

This case involves the interplay between a provision of the domestic relations statutes and the mandatory forms now in use under those statutes. Loren Allen appeals the trial court's finding that, based on the language of his dissolution decree, his obligation to pay spousal maintenance did not terminate upon his ex-wife's remarriage. We hold that failure to mark the "termination upon death or remarriage" option in the decree form does not satisfy the test for clear and unmistakable language required to overcome the statutory presumption that maintenance is terminated upon the remarriage of the party receiving it. Accordingly, we reverse.

On April 28, 1992, Shirley Allen petitioned for dissolution of her marriage. On May 14, 1992, Shirley and her husband Loren entered into a marital and property settlement agreement that required Loren to pay $300 per month for spousal support starting August 1, 1992 "with the final payment due on July 1, 1996". The agreement did not address whether the maintenance obligation would survive remarriage of the wife. The Allens were divorced on August 13, 1992. The decree of dissolution, based on the mandatory domestic relations form, provided spousal maintenance for Shirley using language similar to that in the settlement agreement.

Shirley remarried on October 22, 1992. Loren stopped paying maintenance after his ex-wife's remarriage, claiming that his obligation terminated upon that event. Shirley then garnished his bank account, and Loren filed a claim to have the garnishment quashed. The trial court refused to quash the garnishment, and this appeal followed.

In 1990, the Legislature enacted a provision mandating the use of "standard court forms ... in all actions commenced under chapters 26.09, 26.10, and 26.26 RCW ...". RCW 26.18.220(1). Unnecessary portions of the forms may be deleted according to the rules established by the administrator for the courts; ¹ the forms may also be supplemented with additional material. RCW 26.18.220(2).

The mandatory form for a decree of dissolution contains the following paragraph, which can be altered, providing for spousal maintenance:

                 3.7.  SPOUSAL MAINTENANCE
                       [ ]  Does not apply
                       [ ]  The [ ] husband [ ] wife shall pay maintenance as set forth in
                              Exhibit _______. This exhibit is attached or filed and
                              incorporated by reference as part of this decree
                       [ ]  The [ ] husband [ ] wife shall pay $_________ maintenance.
                              Maintenance shall be paid [ ] weekly [ ] semi-monthly [ ]
                              monthly.  The first maintenance payment shall be due on
                            __________________.
                                  (Date)
                            The obligation to pay future maintenance is terminated:
                       [ ]  upon the death of either party or the remarriage of the party
                              receiving maintenance.
                       [ ]  Other:
                

1 Washington Practice § 13.70 (1995 supp.)

In this case, the attorney who prepared the decree inserted the phrase "after final monthly payment due on July 1, 1996" following the word "terminated" in the final sentence of paragraph 3.7 and then left intact, but did not check, either of the two options that follow.

Our task is to interpret this decree language in light of the statutory presumption that support obligations terminate upon death or remarriage. RCW 26.09.170(2). That statute states: "Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance." (Emphasis added.) RCW 26.09.170(2).

This is apparently the first case calling for construction of mandatory form language in a dissolution decree. In earlier cases construing former RCW 26.09.170, ² courts have held that maintenance terminates upon the death of either party, or at the remarriage of the spouse receiving it, unless the decree contains "specific or manifestly clear and unmistakable" language indicating that the maintenance is to survive these events. Bird v. Henke, 65 Wash.2d 79, 82, 395 P.2d 751 (1964); Murphy v. Shelton, 183 Wash. 180, 48 P.2d 247 (1935); In re Marriage of Williams, 115 Wash.2d 202, 796 P.2d 421 (1990); In re Marriage of Rufener, 52 Wash.App. 788, 764 P.2d 655 (1988), review denied, 112 Wash.2d 1008 (1989); In re Marriage of Mason, 40 Wash.App. 450, 698 P.2d 1104, review denied, 104 Wash.2d 1017 (1985).

In Bird, the divorce decree stated that the ex-wife was to receive $150 per month in maintenance "so long as she shall live, or until her re-marriage." (Italics theirs.) Bird, 65 Wash.2d at 80, 395 P.2d 751. When the ex-husband died, his former wife sought to continue receiving alimony from his estate. The court, however, held that:

... regardless of the attitude adopted by other jurisdictions, it has become the established policy and rule in this jurisdiction that judicially decreed alimony or support payments will abate upon the death of a divorced obligor, absent specific or manifestly clear and unmistakable decretal provision to the contrary.

Bird, at 82, 395 P.2d 751.

Relying on Bird, the Mason court held that, for payments to continue after the recipient's remarriage, the decree must mention specifically the event of remarriage and the effect it would have on the obligation to pay. Mason, 40 Wash.App. at 457, 698 P.2d 1104. In Mason, the divorce decree provided only that the ex-wife was to receive $200 per month as " 'permanent alimony/maintenance' ". Mason, 40 Wash.App. at 451-52, 698 P.2d 1104. The ex-wife sought to continue receiving payments after her remarriage, but the court held that "permanent alimony" alone means alimony until a change in circumstances, such as remarriage, occurs. Mason, at 456, 698 P.2d 1104.

Similarly, the decrees in Rufener and Williams did not address the effect of the recipient's remarriage. In Rufener, the decree stated expressly that payments were to end upon the death of the recipient, the ex-wife. She thus argued that the decree, by mentioning death, impliedly required payments to continue in all other circumstances. However, the court rejected this argument and held that the obligation to pay maintenance terminated by statute. Rufener, 52 Wash.App. at 790, 764 P.2d 655. In Williams, the dissolution decree required the ex-husband to pay maintenance for 4 years or until his ex-wife finished her bachelor's degree. The court held that the decree lacked the specific language necessary to overcome the statutory presumption of termination upon remarriage. Williams, 115 Wash.2d at 210, 796 P.2d 421.

Here, Shirley Allen argues that the decree expressly provides that maintenance does not terminate upon her remarriage because a termination date is specified and the box indicating termination upon death or remarriage was not marked. We do not agree...