In Re The Marriage Of: Virginia Berry v. David Berry
74940-4
| Wash. Ct. App. | Jan 30, 2017Background
- Virginia and David Berry divorced in 2007; a child support order governed postsecondary support for daughter Rachel.
- In 2014 the court modified support to require Rachel to "enroll in and attend school full-time" and to be in good academic standing; the order specified that failure to comply would result in "automatic suspension" and also stated that obligations "shall automatically terminate" upon written verification that Rachel is not enrolled or not attending full-time or not in good standing.
- Spring 2015: Rachel was not a full-time student for medical reasons. David moved to suspend or terminate his postsecondary support obligation; a commissioner granted the motion and terminated support.
- Virginia moved for revision; the superior court denied revision, entered judgment against Virginia for tuition David paid, and awarded attorney fees to David. Virginia appealed.
- The Court of Appeals held the support provision ambiguous as to whether non–full-time attendance mandates suspension or termination, reversed the denial of revision, vacated the tuition judgment and the fee award below, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Virginia) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Interpretation of child support order (suspension v. termination) | The order is ambiguous; failure to attend full-time should not automatically require termination and statute favors suspension | The order is unambiguous and termination is one permissible consequence of non–full-time attendance | Order is ambiguous; termination was not mandated and commissioner/ trial court abused discretion in terminating support |
| Reimbursement for tuition David paid for term Rachel was not full‑time | Reimbursement order was erroneous because termination was not required | David sought reimbursement for tuition he paid | Vacated the $2,374 judgment for tuition reimbursement |
| Attorney fees below | Award was improper because record lacks basis for fee award to David | Trial court awarded fees to David; he argued Virginia was intransigent | Fee award to David vacated for lack of demonstrated basis |
| Appellate attorney fees | Virginia seeks fees under RCW 26.09.140 based on need; David opposes | David seeks fees for Virginia’s alleged intransigence | Appellate fees awarded to Virginia (need shown; no evidence of Virginia’s intransigence) |
Key Cases Cited
- In re Marriage of Jess, 136 Wn. App. 922 (interpreting unambiguous child support order) (court interprets unambiguous orders as written)
- Queen Anne Park Homeowners Ass'n v. State Farm Fire & Cas. Co., 183 Wn.2d 485 (principles of ambiguity and contract construction)
- Kruger v. Kruger, 37 Wn. App. 329 (support during full‑time enrollment construed to include enrolled periods despite absences)
- In re Marriage of Chandola, 180 Wn.2d 632 (intransigence as basis for fee awards)
- Urbana v. Urbana, 147 Wn. App. 1 (balancing need and ability to pay for appellate fee awards)