Opinion
No. 60993-9-I.
October 13, 2008.
Appeal from a judgment of the Superior Court for King County, No. 94-3-00890-4, Theresa B. Doyle, J., entered November 15, 2007.
UNPUBLISHED OPINION
Divorced parents dispute the meaning of a post-secondary educational support provision in their order of child support. The trial court correctly concluded that the father was given sufficient notice to trigger his duty to contribute to college tuition for the middle child. We affirm.
Mills, the father, and Hyde, the mother, divorced in 1994 when their three children were nine, seven and four. The order of child support stated that the parents would provide post-secondary educational support for their children to the extent such expenses were not covered by trust funds set up by the mother's grandfather:
3.11 POST SECONDARY EDUCATIONAL SUPPORT
. . . .
The parents shall pay for the post secondary educational support of the child(ren) as follows:
The parties recognize their obligation to contribute to the post majority support for their children for educational/vocational purposes. Benefits are available from life insurance policies and bonds maintained by the mother's grandfather to satisfy the financial needs of the children for post-secondary education. In the event that such benefits are insufficient to cover the post-secondary educational needs of the children, then the parties shall contribute to post majority support for educational and/or vocational training in proportion and commensurate with their incomes, regardless of remarriage or the future child support obligations of either party.
Support should be required for post-secondary education when the party seeking to create such an obligation gives the other party notice at the time of the child's 17th birthday. Upon such notice the parties shall attempt to negotiate an agreement. However, should they fail to achieve a mutually satisfactory agreement, they shall resolve it pursuant to the dispute resolution process set forth in the permanent parenting plan.
A trust fund covered the oldest child's college expenses. But in 2006, when Derek, the middle child, was 19 years old and in his first year of college, Hyde told Mills that the trust funds would not cover all of Derek's college expenses. Hyde and Mills tried to reach an agreement on paying college costs for Derek and his younger sister Caitlin. In June 2007, Hyde unsuccessfully brought a motion for contempt against Mills for his alleged failure to contribute funds for Derek.
After attempting mediation, Hyde brought a motion to enforce the child support order as to Derek and Caitlin. A court commissioner refused to enforce the order for Derek, accepting Mills' argument that he had no obligation to cover costs for Derek because Hyde did not notify him at the time of Derek's 17th birthday that the trust fund was insufficient. The commissioner did rule that notice was sufficient as to Caitlin.
Hyde moved to revise the commissioner's order as to Derek. Mills moved to revise as to Caitlin. The superior court denied Mills' motion as untimely. The superior court granted Hyde's motion for revision, concluding that the notice provision did not create a mandatory condition precedent:
IT IS HEREBY ORDERED: the motion for revision of the order as to Derek is GRANTED because the language of the notice provision § 3.11 of the child support order is precatory only. The matter is remanded to the Commissioner for further proceedings and consideration of allowing father reasonable notice of the additional support obligation prior to the obligation becoming due in order to allow for financial planning, which this Court finds was the intent of the notice provision.
Mills appeals.
Interpretation of a child support order presents a question of law reviewed de novo. See Stokes v. Polley, 145 Wn.2d 341, 346, 37 P.3d 1211 (2001). If the language of the decree is ambiguous, we determine the intent of the court that entered the order. Kruger v. Kruger, 37 Wn. App. 329, 331, 679 P.2d 961 (1984). To determine intent, the general rules of construction applicable to contracts, statutes, and other writings are used. Kruger, 37 Wn. App. at 331.
Mills focuses on the sentence, "support should be required for post-secondary education when the party seeking to create such an obligation gives the other party notice at the time of the child's 17th birthday." He contends the word "should" is a mandatory word of command because "should" is the past tense of "shall." But when both "shall" and "should" appear, as they do in section 3.11 of the child support order, it is presumed that the terms were meant to be distinguished. Tennant v. Roys, 44 Wn. App. 305, 314, 722 P.2d 848 (1986).
In Tennant, the Court of Appeals interpreted the meaning of the word "should" in a Washington Administrative Code section that said a blood sample analysis "should" include a duplicate test. Because the governing statute used the word "shall" to mandate the use of approved methods of analysis, the use of the word "should" in the regulation meant that it was expedient, fit, proper and advisable to do a second test, but not mandatory. Tennant, 44 Wn. App. at 314.
Mills argues that any ambiguity in the meaning of "should" is to be construed against Hyde because Hyde and her attorney drafted the child support order. It is unnecessary to turn to this rule of construction because the non-mandatory meaning of "should" becomes apparent when the child support provision is read as a whole. The trial court properly concluded that the word "should," although it can have more than one meaning, is precatory in this case rather than mandatory because the stronger word "shall" was used in the same provision to establish the duty of both parents to provide post-secondary educational support.
In Kruger, the Court of Appeals interpreted a decree of dissolution that provided for support up to age 21 "so long as" each child was still dependent and, if over 18, was "engaged in a full time program of higher education, absent normal intervals for holidays or summer vacation." Kruger, 37 Wn. App. at 331. The father in Kruger argued that the phrase "so long as" was a phrase of limitation, meaning that he did not have to pay back support for children during some extended periods of time when they missed school after turning 18. Kruger, 37 Wn. App. at 331. The court disagreed, concluding that such a restrictive reading would not further the purpose of encouraging and aiding the children in pursuing higher education and decreasing any financial disadvantage they might suffer as a result of their parents' divorce. Kruger, 37 Wn. App. at 331-32.
The same is true in this case. The differing use of "shall" and "should" by the court that entered the child support order shows that the primary concern was to ensure that the parents had a mandatory obligation to contribute to the children's educational costs if the trust funds were not adequate. The notice provision was a secondary concern, intended to allow time for financial planning so that money would be available when needed. The order on revision effectuates this intent by directing that the father's obligation be established, with consideration for the requirement that he have reasonable notice of the additional support obligation before it became due.
ATTORNEY FEES
Hyde seeks fees and costs under RCW 26.09.140, governing legal separation and dissolution proceedings. We have discretion to order fees and costs under RCW 26.09.140 after considering the financial resources of both parties. "The decision to award fees under RCW 26.09.140 is discretionary and must be based upon a consideration that balances the needs of the spouse seeking fees against the ability of the other spouse to pay." In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999).
In any action where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees and expenses, "each party must serve upon the other and file a financial affidavit no later than 10 days prior to the date the case is set for . . . consideration on the merits." RAP 18.1(c). Hyde filed her affidavit on September 10, 2008. "Any answer to an affidavit of financial need must be filed and served within 7 days after service of the affidavit." RAP 18.1(c). Mills has not filed an affidavit of financial need or an answer to Hyde's affidavit of need. In his statement of facts, Mills has alleged that Hyde used some of the children's trust money to buy a cabin in her own name. The record does not substantiate this assertion. Based on the information in the record, we conclude that Mills has a greater ability to pay than Hyde.
Hyde also seeks fees for having to defend against a frivolous appeal. Mills' notice of appeal challenged not only the order imposing a duty to provide support for Derek but also the order concluding that he had a duty to support Caitlin. In his opening brief, Mills similarly indicates that he is objecting to an obligation to pay college costs for both Derek and Caitlin. His reply brief abandons his appeal as to Caitlin. To the extent Hyde's request for an award of fees on appeal is based on work done on the order relating to Caitlin, it is additionally justified under RAP 18.9 as a sanction for filing a frivolous appeal.
Affirmed.