,


                                                                                  FILED
                                                                                OCT 21, 2014
                                                                        In the Office of the Clerk of Court 

                                                                      W A State Court of Appeals, Division ill 





                IN THE COURT OF APPEALS' OF THE STATE OF WASHINGTON 

                                   DMSION THREE 


     In re the Marriage of:                          )
                                                     )        No. 32158-4-111
     JOANNE M. GRAHAM,                               )
                                                     )
                           Appellant,                )
                                                     )
            and                                      )        UNPUBLISHED OPINION
                                                     )
     ARCH D. GRAHAM,                                 )
                                                     )
                           Respondent.               )

            KORSMO, J. -      Joanne Peterson appeals the trial court's denial of her motion to

     clarify a provision of her divorce decree and her motion for entry ofa QDRO.l We

     reverse the trial court's denial of Ms. Peterson's clarification request and remand for

     further proceedings in accordance with this opinion.

                                                 FACTS

            Acting pro se, Ms. Peterson petitioned for legal separation from her then husband,

     Arch D. Graham, on April 25, 2008. Mr. Grahamjoined in the petition. Under




            1   Qualified Domestic Relations Order. 26 U.S.c. § 414(P).
No. 32158-4-III
In re Marriage ofGraham


paragraph 3.2 entitled "Property to be Awarded Husband, Other" Ms. Peterson drafted a

provision which read:

       The [R]espondent [Mr. Graham] is awarded his Northwest Ironworker
       Retirement Trust Pension and Annuity, providing he maintain medical,
       dental and vision insurance for the petitioner [Ms. Peterson]. In the event
       this insurance is not provided, Respondent shall pay to the Petitioner the
       cash amount needed for her to secure her own insurance.

Clerk's Papers (CP) at 9. The legal separation was granted and was eventually converted

into a dissolution on August 25,2011.

       Mr. Graham did not provide medical insurance, nor did he provide the cash

equivalent. As a result, Ms. Peterson filed a motion and declaration for a QDRO to enforce

the decree provision. The court refused to enter the QDRO, reasoning that it did not have

the authority to do so because the dissolution decree did not contemplate it.

       Ms. Peterson then filed a motion and declaration to clarify the decree and enforce

the property division. She asserted that "clarification is necessary because there is nothing

in the Decree regarding enforcement of the proviso in the event the Respondent does not

'maintain medical, dental and vision insurance for the petitioner.'" CP at 29. She also

argued that the challenged provision contained a proviso by which Mr. Graham was not

entitled to receive his pension ifhe failed to provide the medical insurance or cash

equivalent. She again sought the entry of a QDRO as a means of enforcing the provision.

       The trial court denied the motion to clarify and enter a QDRO. In its supporting

findings of fact and conclusions of law, the trial court reasoned that the decree was not

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In re Marriage ofGraham


vague, so clarification was not required, and that the provision expressly provided money

damages if the husband did not maintain insurance. The court thus construed the
                         ,

language as awarding Mr. Graham his retirement in exchange for his promise to provide.

Ms. Peterson with medical coverage. If Mr. Graham failed to provide Ms. Peterson with

medical coverage, her recourse would be money damages.

       Ms. Peterson next filed a CR 60 motion to vacate paragraph 3.2 of the decree. She

asserted as grounds for the CR 60 motion clerical errors, fraud and misrepresentation, and

extraordinary circumstances. After hearing argument from Ms. Peterson, the court found

that

       the petitioner as a pro se drafted the language regarding respondent's
       pension and payment of petitioner's health insurance, and that she has
       exercised the remedy she drafted, that is, to seek contempt provisions.

CP at 49. The court th~n concluded that CR 60(a) was inapplicable and that no provision

ofCR 60(b) supported Ms. Peterson's motion. The court denied the motion to vacate.

       Ms. Peterson then timely appealed.

                                       ANALYSIS

       Ms. Peterson argues that the court erred when it failed to construe the language in

paragraph 3.2 in the decree as creating a condition precedent to Mr. Graham's pension




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In re Marriage ofGraham


award. She also argues that the court erred when it refused to enter a QDRO as a remedy.2

We address the arguments in tum. 3

       The Decree Language

       This court reviews the language in a dissolution decree de novo. In re Marriage of

Gimlet!, 95 Wn.2d 699, 704-05, 629 P.2d 450 (1981). The general rules of construction

that apply to statutes, contracts, and other writings also apply to decrees. In re Marriage

ofLee, 176 Wn. App. 678, 688, 310 P.3d 845 (2013). "Courts can neither disregard

contract language which the parties have employed nor revise the contract under a theory

of construing it." Wagner v. Wagner, 95 Wn.2d 94,101,621 P.2d 1279 (1980).

Additionally, an "interpretation of a writing which gives effect to all of its provisions is

favored over one which renders some of the language meaningless or ineffective." Id.

       In the present case the trial court erred when it failed to construe the word

"providing," as a condition precedent. "Any words which express, when properly

interpreted, the idea that the performance of a promise is dependent on some other event

will create a condition. Phrases and words such as 'on condition,' 'provided that,' 'so that,'




       2 Ms. Peterson also assigned error to the court's refusal to grant her CR 60
motion. Because of our resolution of the first issue, we do not reach the CR 60 argument.
       3 Ms. Peterson also moved to strike portions of the factual allegations in the brief
of respondent. We did not rely upon any factual allegations outside of the record of this
case and therefore deny the motion in order to prevent further delay as there is no
prejudice to Ms. Peterson.

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No. 32158-4-111
In re Marriage ofGraham


'when,' 'while,' 'after,' or 'as soon as' are often used." Ross v. Harding, 64 Wn.2d 231,

237,391 P.2d 526 (1964); Clarkson v. Wirth, 4 Wn. App. 401, 404, 481 P.2d 920 (1971).

       In Ross, the court was interpreting the provision: "it is specifically understood and

agreed that this offer is made subject to the written consent." 64 Wn.2d at 237. The court

asserted that it "would be difficult to choose words to more precisely express an intention

to create a condition precedent than those used in the contract here to be construed." Id.

      . The present case is similar to Ross in that the parties here clearly used a word that

indicated an express intention to create a condition precedent. The challenged provision

read that Mr. Graham was awarded his pension ''providing he maintain medical, dental and

vision insurance for the petitioner [Ms. Peterson]." CP at 9 (emphasis added). The word

"providing" is substantively similar to "provided that," a phrase recognized as a common

conditional phrase. See, e.g., Ross, 64 Wn.2d at 236; Clarkson, 4 Wn. App. at 404;

5 SAMUEL WILLISTON, CONTRACTS § 671, at 161 (Walter H. E. Jaeger, 3rd ed. 1961).

Webster's Dictionary also defines the word "providing" as, "on condition that."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827 (1993). Thus, in the present

case, the word "providing" created a condition precedent. To construe the language the

way the trial court did would render the word "providing" ineffective. As a result, the trial

court erred when it failed to construe and give meaning to the word "providing" as creating

a condition precedent.




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No. 32158-4-III
In re Marriage ofGraham


      If one construes the language with the condition precedent, Mr. Graham must

fulfill his condition first--either providing insurance for Ms. Peterson or the cash

equivalent-before he is entitled to the award of his pension. Because Mr. Graham did

not fulfill the condition precedent, Ms. Peterson never lost her claim of right to Mr.

Graham's pension.

       The trial court erred in denying the motion to clarify.

       QDRO

       Ms. Peterson argued extensively that the proper remedy in this case was to enter a

QDRO against Mr. Graham's pension in the amount of her medical coverage expenses.

The court did not err when it refused to enter a QDRO as a remedy where the decree did

not-and currently does not-contemplate a QDRO.

       It is well settled that a "court may not add to the terms of the agreement or impose

obligations that did not previously exist." Byrne v. Ackerlund, 108 Wn.2d 445,455,

739 P .2d 113 8 (1987). Here, although the pension was considered in the property division

portion of the decree, the parties did not discuss the details of the division in the decree,

such as their respective shares of the pension, or whether a QDRO would be the device

used to distribute the funds. As a result, the court would have been modifying the terms·

of the agreement and imposing obligations that did not exist if it had entered the QDRO at




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In re Marriage ofGraham


that procedural juncture. Therefore, the court did not err when it refused to enter a QDRO

where the current decree did not consider one. 4

       Attorney Fees

       Both parties request their attorney fees on appeal under RAP 18.1 and

RCW 26.09.140, while Ms. Peterson additionally seeks attorney fees on the basis of Mr.

Graham's alleged intransigence. We decline to award attorney fees. The trial court, in its

discretion, may wish to address appellate attorney fees upon remand if the parties renew

their requests.

       As substantially prevailing party on appeal, Ms. Peterson is entitled to her costs.

RAP 14.3(a).

       Affirmed in part, reversed in part, and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040. 




WE CONCUR: 




       Brown, A.C ..                                                 ence-Berrey, 1.


       4  By so holding, we are not foreclosing QDRO as an appropriate remedy for the
court to consider when it divides Mr. Graham's pension.

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