Moon v. Moon

• Decision Date: 17 April 1996
• Parties: Richard W. MOON, Appellant, v. Lois Elaine MOON, Respondent. 94-CV0359-MS; CA A88126.
• Court: Oregon Court of Appeals

Page 1133

914 P.2d 1133

140 Or.App. 402

Richard W. MOON, Appellant, v. Lois Elaine MOON, Respondent.

94-CV0359-MS; CA A88126.

Court of Appeals of Oregon.

Argued and Submitted Nov. 22, 1995.

Decided April 17, 1996.

Appeal from Circuit Court, Deschutes County. Thomas Mosgrove, Judge.

Ray Polakovic argued the cause for appellant. With him on the briefs was Brothers, Steelhammer & Ash, Bend.

Lawrence W. Erwin, Bend, argued the cause and filed the brief for respondent.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

In this action to quiet title, plaintiff husband ¹ claims sole title to a parcel of property, based on provisions of a prior marital settlement agreement. The trial court entered judgment for defendant wife, concluding that the agreement did not pertain to the property. On de novo review, ORS 19.125(3), we reverse.

The success of husband's quiet title action depends on the construction of the parties' marital settlement agreement. That agreement, which was executed in February 1989, disposed of the parties' property, and provided, in part:

"3. Wife's property: Wife shall have as her sole and separate property, free and clear of any interest of Husband, the following:

"(a) The residence and real property located at 833 Cedar Avenue, Redmond, Oregon, subject to any encumbrance thereon.

" * * * * *

"4. Husband's Property: Husband shall have as his sole and separate property free and clear of any interest of Wife, the following:

"(a) The residence and real property located at 20995 Vista Bonita Drive, Bend, Oregon, subject to any encumbrance thereon.

" * * * * *

"10. Full Disclosure: The parties have each entered into this Agreement upon mature consideration and it is expressly based upon the promise that neither party has any asset or other property except that which is described or distributed herein."

The judgment dissolving the parties' marriage, entered in May 1989, approved the settlement agreement. ²

At the time of dissolution, the parties' only property in Bend was their residence at 20995 Vista Bonita Drive and an adjacent pasture, which the couple had used for farming and family recreation. Following dissolution, wife executed a quitclaim deed for the property on which the residence was situated. Husband, without objection from wife, took sole possession of both the residence and the pasture. In 1994, husband began exploring the prospect of placing a home on the pasture land, and, to receive financing for that project, he authorized a title search on the pasture lot. The title search disclosed that wife was listed as having a joint interest in the pasture lot. After husband and his attorney contacted wife, she refused to execute a quitclaim deed renouncing her interest in the property.

Thereafter, husband filed this action to quiet title, claiming that the parties intended that the description "20995 Vista Bonita Drive," used in the marital settlement agreement, to refer to both the parcel of land on which the residence was situated and the pasture. Husband contends, inter alia, that the settlement agreement's reference to the Bend property was ambiguous and that resort to extrinsic evidence of the parties' intent would demonstrate that the "20995 Vista Bonita Drive" reference encompassed the pasture lot. ³

At trial, husband offered undisputed evidence that, although the pasture land had a separate tax lot number from the residence, it did not have a separate street or postal address. Husband testified that, at the time of the dissolution, it was the parties' intent that he receive all of the Bend property. The attorney who represented husband at the dissolution proceedings testified that, when he drafted the marital property agreement, the property was identified merely as "the Bend property," and that he was unaware that the street address might not describe all of the Bend property. Wife did not contradict either husband's or the attorney's testimony in those regards. That is, she did not present evidence that, in executing the settlement agreement, she intended to retain ownership of the pasture lot or that she believed that she had done so.

The trial court entered judgment for wife. In its memorandum opinion, the court stated:

"Both parties were aware at the time of divorce that there were two pieces of property in Bend. In fact, the address put in the settlement is the address of only one of the lots.

"Paragraph ten of the settlement agreement is relied upon by [husband] to establish the ambiguity of the description. The argument is that since the parties in paragraph ten stated neither party has an asset not described in the agreement, that the address must have been intended to cover both Bend lots, and should be so construed.

"Factually, however, the failure to include the other lot was a mistake, primarily by [husband], but also by [wife], for failing to be aware that both lots were not described.

"I find as a fact it was the intent of the parties at the time of the dissolution that [husband] was to have both lots. The failure to include the second lot was a mistake by the parties. The description in the agreement is not ambiguous. It describes properly one of the lots and not the other, which has an entirely different street address. The deed which conveyed the property described in the decree covered only the lot designated by the address in the agreement.

"The agreement and hence the decree incorporating it left out a piece of the property because of the mutual mistake of the parties. This is not an action to reform the agreement.

"ORCP 71 B controls the correction of a decree by reason of mistake of fact. That is not the remedy sought here, and has already been ruled unavailable to [husband]."

On appeal, husband assigns error to the trial court's determination that the settlement agreement unambiguously pertained to the residence only and not to the adjacent pasture lot. Husband's argument, as we understand it, is that, when read in conjunction with paragraph 10 of the agreement ("neither party has any asset or other property except that which is described or distributed herein"), the reference in paragraph 4(a) to "the residence and real estate located at 20995 Vista Bonita Drive" was ambiguous in that it could refer either exclusively to the residence or could also include the adjacent lot, which had no street address of its own. Husband argues that, given the parties' express representations in paragraph 10 that they were apportioning all their assets, the "located at" language can, and should, be reasonably construed to include the adjacent, commonly owned property that could not be identified by some separate street address.

The terms of a marital settlement agreement, as incorporated in a marital dissolution judgment, ⁴ are to be construed in the same fashion as other contractual terms. Winningstad and Winningstad, 99 Or.App. 682, 685, 784 P.2d 101 (1989); Anderson and Anderson, 65 Or.App. 16, 19, 670 P.2d 170 (1983). We recently summarized the pertinent principles of contractual construction:

"If contract language is ambiguous, extrinsic evidence of the parties' intent may be admitted, and interpretation of that language becomes a question of fact. The initial question of whether a contract is ambiguous is a question of law. In determining whether an ambiguity exists, the court may consider parol and other extrinsic evidence. Al...