                                                                            •
                                                                            APPE,Ac       `-/ T
                                                                    STATE OF WASHU-!1.3.T011
                                                                     fl JUL
                                                                   2017     I7         9: 20



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of
                                                  No. 75155-7-1
JOHN GREGORY,
                                                  DIVISION ONE
                    Appellant,               )
                                             )
       and                                   )    UNPUBLISHED OPINION
                                             )
JENNIFER GREGORY,                            )
                                             )
                    Respondent.              )    FILED: July 17, 2017
                                             )
       LEACH, J. — John Gregory appeals the decree of dissolution dissolving his

marriage to Jennifer Gregory.        He challenges the court's division of assets,

claiming that it misread the parties' prenuptial agreement when characterizing

their property as separate or community.          Because the trial court correctly

interpreted the prenuptial agreement, we affirm.

                                     Background

       John Gregory began working for Google in 2001. As part of his initial

compensation, he received stock options that vested over four years.              He

exercised these options before Google went public in 2004. The Google IPO

(initial public offering) made John a wealthy man.

       John   and    Jennifer      Gregory   executed   a   prenuptial   agreement

("Agreement") on September 6, 2005. The Agreement states that they had lived
No. 75155-7-1 / 2



together for the past three years. They married seven days later on September

13, 2005. The couple had one daughter. They separated on December 30,

2014, when John filed for dissolution.

       The parties agreed on a parenting plan but were unable to resolve the

financial matters. After a trial, the trial court entered a decree of dissolution

approving the parties' agreed parenting plan and distributing property in accord

with its interpretation of the parties' Agreement.

       John appeals.

                                      Analysis

       John challenges the trial court's interpretation of two provisions of the

parties' Agreement, one providing for the conversion of separate property to

community property and one addressing the payment of living expenses. Neither

party challenges the enforceability of the Agreement.

       Interpretation of a contract is a mixed question of law and fact. When the

trial court's interpretation depends on the credibility of conflicting evidence, this

court upholds the trial court's factual findings when substantial evidence in the

record supports them.1 But the question of whether a contract is ambiguous is a

legal question for the court that an appellate court reviews de novo.2

       1 Berg v. Hudesman, 115 Wn.2d 657, 667-68, 801 P.2d 222 (1990)
(adopting RESTATEMENT(SECOND)OF CONTRACTS § 212(Am. LAW. INST. 1981)).
      2 GMAC v. Everett Chevrolet, 179 Wn. App. 126, 135, 317 P.3d 1074
(2014).
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No. 75155-7-1 /3



Property Conversion

       The Agreement included provisions converting the parties' separate

property to community property in increments over fifteen years, beginning on the

fifth anniversary of their marriage. John challenges the trial court's decision that

the property conversion provisions continued to convert separate property until

the time of trial. He contends that they became inoperative when the marriage

became defunct upon his filing this dissolution action.

       The Agreement property conversion provisions state,

              (d) Conversion of Separate Property to Community Property.
       On the fifth anniversary of the Marriage, twenty percent (20%) of
       each party's remaining separate property shall be converted to
       community property. Beginning on the sixth anniversary of their
       Marriage, ten percent (10%) of each party's separate property,
       including associated separate property obligations, shall be
       converted to community property each year. More specifically, this
       shall be accomplished in the following manner.

                    i.     On the sixth anniversary of the Marriage, one-
       tenth (1/10) of each party's remaining separate property shall be
       converted to community property;

                     ii.    On the seventh anniversary of the Marriage,
       one-ninth (1/9) of each party's remaining separate property shall be
       converted to community property;

                     iii.   On the eighth anniversary of the Marriage,
       one-eight (1/8) of each party's remaining separate property shall be
       converted to community property;

                    iv.    On the ninth anniversary of the Marriage, one-
       seventh (1/7) of each party's remaining separate property shall be
       converted to community property;

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No. 75155-7-1/ 4


                    v.   On the tenth anniversary of the Marriage, one-
      sixth (1/6) of each party's remaining separate property shall be
      converted to community property;

                    vi    On the eleventh anniversary of the Marriage,
      one-fifth(1/5)of each party's remaining separate property shall be
      converted to community property;

                   vii.    On the twelfth anniversary of the Marriage,
      one-fourth (1/4) of each party's remaining separate property shall
      be converted to community property;

                    viii. On the thirteenth anniversary of Marriage, one-
      third (1/3) of each party's remaining separate property shall be
      converted to community property;

                    ix.    On the fourteenth anniversary of Marriage,
      one-half (1/2) of each party's remaining separate property shall be
      converted to community property; and

                   x.    On the fifteenth anniversary of Marriage, all of
      each party's remaining separate property shall be converted to
      community property.

       If an actual redesignation of title is not accomplished to implement
     • these conversions, the marital community shall have a community
       property lien on the party's separate property (which shall include
       increases and decreases in the value of the assets) until the
       appropriate changes in title are completed. Following the first day
       of the fifteenth year of the Marriage, all property of the parties,
       whether acquired by gift, inheritance, testamentary transfer or
       otherwise, shall be community property.

      The trial court decided that the Agreement was not ambiguous, that

marriage anniversaries continued to occur until the marriage was dissolved, and

that the final property conversion happened on the tenth marriage anniversary,

September 13, 2015. John disagrees. He contends that for purposes of the

Agreement, marriage anniversaries stopped occurring when he filed his
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No. 75155-7-1 / 5



dissolution petition because the marriage became defunct then. Thus, he claims

that the last conversion occurred on the ninth marriage anniversary, September

13, 2014.

      John cites Seizer v Sessions3 as support for his position. But we readily

distinguish the issue decided in Seizer.       There, the court considered the

application of Washington's separate and apart statute, RCW 26.16.140,4 under

a set of extreme facts. A man who was never divorced from his mentally

incompetent first wife married a second and third time.6 While he was married to

his third wife, he won a substantial sum from the lottery.6 The first wife, through

her guardian, and the third wife made competing claims to these winnings.7 In

this context, the court held that the separate and apart statute required mutuality

on the part of the spouses and thus would not apply where an abandoned

spouse is mentally ill or incompetent during the separation.8

       But here the trial court did not apply a statute to determine the status of

the parties' property. It interpreted their voluntary agreement about status. In

      3 132 Wn.2d    642, 940 P.2d 261 (1997).
        4 Former RCW 26.16.140 (1978) provided,"When a husband and wife are
living separate and apart, their respective earnings and accumulations shall be
the separate property of each." RCW 26.16.140 was amended in 2008 to
change "husband and wife" to "spouses or domestic partners" but otherwise
remained the same. LAWS OF 2008, ch. 6,§ 613.
        5 Seizer, 132 Wn.2d at 646-47.
        6 Seizer, 132 Wn.2d at 647.
        7 Seizer, 132 Wn.2d at 647-48.
        8 Seizer, 132 Wn.2d at 659.
                                        -5-
No. 75155-7-1 /6



paragraph 9 of the Agreement, John and Jennifer acknowledged discussing with

their respective counsel a spouse's property rights under Washington law and

the fact that the Agreement operated to waive those rights. Thus, Seizer's

statutory construction provides no guidance to the meaning of the Agreement.

      The Agreement plainly states that on each anniversary after the fifth one,

part of the party's separate property shall be converted to community property.

The parties were still married on September 13, 2015, the tenth anniversary of

their marriage. The applicable Agreement provision provided for conversion of

separate property on this date without any limiting qualification about the status

of the parties' relationship beyond the fact that they were married.         Other

provisions of the Agreement show that the parties knew how to include further

limitations when they intended them.

      The provisions of the Agreement addressing a dissolution occurring within

the first five years of marriage provide an example. Those provisions require

John to contribute separate property to a community account with the amount

calculated based on the date of separation "with the intention that the separation

be permanent."

      John offers no persuasive reason why the trial court should have implied a

similar provision in the disputed provision when the parties did not include it. In

the absence of fraud, accident, or mistake, a court will not add, modify, or

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No. 75155-7-1 / 7



contradict the terms of a written contract.9 As our Supreme Court noted in In re

Marriage of Schweitzer,19 lit] is the duty of the court to declare the meaning of

what is written, and not what was intended to be written." This duty applies

equally to what a party later wishes had been written.

      In re Estate of Bachmeierl 1 supports the trial court's decision There, a

husband and wife signed a community property agreement declaring that all their

property was community property and, upon the death of either, making the

survivor the owner of that property.12        When the husband filed for legal

separation, the wife changed her will, disinheriting him and leaving her property

to her daughter.13 Soon after, the wife died. When the daughter sought to

probate the will, the husband objected, claiming the wife's estate under the

community property agreement.14 The court rejected the daughter's invitation to

imply a provision in the agreement terminating it upon the parties' separation.15

       Division 11 of this court reached a similar result in In re Estate of Catto.16

There, the court rejected the argument that a community property agreement

      9     In re Marriage of Schweitzer, 132 Wn.2d 318, 327, 937 P.2d 1062
(1997).
       10  132 Wn.2d 318, 327, 937 P.2d 1062 (1997) (alteration in original)
(internal quotation marks omitted)(quoting Berg, 115 Wn.2d at 669).
       11 147 Wn.2d 60, 52 P.3d 22(2002).
       12 Bachmeier, 147 Wn.2d at 62-63.
       13 Bachmeier, 147 Wn.2d at 63.
       14 Bachmeier, 147 Wn.2d at 63.
       15 Bachmeier, 147 Wn.2d at 68-69.
        16 88 Wn. App. 522, 944 P.2d 1052(1997).
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No. 75155-7-1 / 8



contained an implied termination provision that became effective when the

parties' marriage became defunct.17 As Bachmeier states, filing a dissolution

proceeding is "'not the same as an intention to immediately effect an ex parte

abandonment of a valuable contractual right."18

      A Connecticut case, Peterson v. Sykes-Peterson," provides persuasive

support. There, the parties signed a prenuptial agreement which contained a

sunset clause, terminating the agreement on their seventh anniversary.20 The

seventh anniversary occurred after the husband had filed for divorce but before

the divorce became final. As John does, the husband in Peterson argued that

the provision would apply only if they were still happily married and celebrating

their seventh anniversary.21 The court disagreed, holding that the language was

clear and that had the parties desired a different result, they could have included

language that did so. The court offered the example that "the agreement would

become unenforceable on the parties' seventh wedding anniversary provided

that the parties remained married and living together and there was no pending

separation or divorce action."22 Similarly, here, the trial court could not imply a


       17 Catto, 88 Wn. App. at 529.
      18 Bachmeier, 147 Wn.2d at 64 (quoting In re Estate of Lyman, 7 Wn. App.
945, 951, 503 P.2d 1127(1972)).
       19 133 Conn. App. 660, 37 A.3d 173(2012).
      20 Peterson, 37 A.3d at 175.
      21 Peterson, 37 A.3d at 176.
      22 Peterson, 37 A.3d at 177.
                                      -8-
No. 75155-7-1/ 9



provision terminating the property conversion terms of the Agreement on

separation.

      We reject John's assertion that this result will encourage a party to stall

the dissolution process in order to have more property convert to community

property. The trial court found no evidence of such a delay on Jennifer's part and

noted that if such a scenario had occurred, then John would have been able to

assert equitable defenses to Jennifer's effort to specifically enforce the

Agreement.

Community Expenses

      We turn now to the second issue presented. John claims that the trial

court should have reduced the amount of his separate property converted to

community property by the amount of community expenses he paid from his

separate property.

      The Agreement did not require that the parties implement the conversion

of their separate property to community on each anniversary. And they did not.

Paragraph 1(d) of the Agreement anticipated this circumstance and provided that

"[i]f an actual redesignation of title is not accomplished to implement these

conversions, the marital community shall have a community property lien on the

party's separate property (which shall include increases and decreases in the

value of the assets) until the appropriate changes in title are completed."

                                        -9-
No. 75155-7-1 / 10



      John paid a significant portion of John and Jennifer's living expenses by

contributing money from his separate account to a community joint account. The

trial court decided that the Agreement made these payments gifts to the

community. It relied on paragraph 3 of the Agreement:

      During     Marriage, all      ordinary  and      necessary     living
      expenses . . . shall be paid out of a community property joint
      account. In the event that there are insufficient funds in the
      community joint accounts to cover such living expenses, then each
      party shall contribute to the community joint accounts an amount
      necessary to pay such expenses, in proportion to each party's
      respective separate income from all sources. If either party so uses
      separate property to pay for ordinary and necessary living
      expenses of the community incurred during Marriage, such
      separate property payment will be treated as a gift to the
      community and the contributing Spouse will not have any rights as
      a lien holder against the community.

(Emphasis added.)

      John does not dispute that the parties paid community expenses from joint

accounts held in both of their names since January 2012. Rather, John argues

that payments from his separate account into that community account come from

the annual conversions of his separate property to community property. At trial,

however, during John's cross-examination, the following exchange occurred:

      Q.     Okay. So since the assets were primarily under your control
             during the marriage, why didn't you segregate them or
             convert them on the deadlines as stated in the prenuptial
             agreement?

      A.     Never came up.


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No. 75155-7-1 / 11


      Q.     So with all—

      A.     1 was never asked by Jennifer. It never was brought to my
             attention. I never considered it.

      Q.     Okay. Did you—then when you were providing Jennifer
             funds, when you were putting money in her account, was
             there any kind of support or information regarding what
             money she was getting? Or did you just—

      A.     1 just provided her funds. 1 didn't categorize them.

Thus, John clearly never intended to make a contemporaneous conversion. He

cannot now recharacterize _those transfers as something other than payments

from his separate account.

      Because no conversions occurred, the prenuptial agreement provided the

marital community with a lien on John's separate property.23 And his payments

for community expenses from his separate account did not reduce the amount of

the lien the marital community had on his separate property because the

Agreement made those payments gifts to the community.               We find John's

argument that the trial court erred in declining to deduct 2010 through 2011

community expenditures from the community lien similarly unpersuasive.

Jennifer's Request for Attorney Fees

      RCW 26.09.140 provides that a court "may" award costs and attorney fees

for a party's appeal in a dissolution case "after considering the financial


      23 See paragraph 1(d) of the Agreement: "[The marital community shall
have a community property lien on the party's separate property ... until the
appropriate changes in title are completed."
                                       -11-
No. 75155-7-1/ 12



resources of both parties." After reviewing the parties' financial declarations, we

exercise our discretion to deny Jennifer's request for fees.

      Affirmed.




WE CONCUR:




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