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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Matter of the Marriage of                 )
                                            )       No. 66411-5-I
JEFFREY PAUL MANIPON,                       )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       UNPUBLISHED OPINION
            and                             )
                                            ) 
RANIE HELEN MANIPON,                        )
                                            ) 
                      Appellant.            )       FILED:  April 23, 2012

       Grosse, J.     --    Clear and unambiguous terms in a property settlement 

agreement are enforced as written and are given their ordinary, usual, and popular 

meaning.  Here, the parties' property settlement agreement, incorporated into the 

decree of dissolution, clearly and unambiguously allows Jeffrey Manipon to require 

the immediate listing of the rental property for sale if Ranie Manipon fails to make a 

mortgage payment.  The agreement does not, however, clearly and unambiguously 

allow Jeffrey to do so where Ranie does in fact make a mortgage payment, but does 

so after the payment's due date.  Because Ranie did not fail to make a mortgage 

payment on the rental property, but rather failed, on at least two occasions, to timely 

make a mortgage payment, Jeffrey's right to require the immediate listing of the 

property for sale did not arise.  Accordingly, we reverse the trial court's order 

granting Jeffrey's motion to enforce the decree of dissolution.

       Incorporated into the parties' decree of dissolution is a property settlement 

agreement under which Ranie was awarded rental property located in Federal Way, 

Washington.  The agreement provides further: 

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       If the Wife fails to make the mortgage payments on the real property 
       awarded to her, Husband may make the payments and receive 
       reimbursement and/or at his option, require that the real property be 
       listed for sale immediately.  The parties shall agree to a realtor or, if 
       they cannot agree, the court shall choose from a list of 3 provided by 
       the Husband.  The court will retain jurisdiction over this issue.  
       Husband to be reimbursed for house payments he makes within 90 
       days or from house sale net proceeds, if any.

       The agreement also contains an attorney fee provision providing:

              In the event of breach of this Agreement, the breaching party 
       shall pay to the non-breaching party, in addition to the usual remedies 
       allowed by law, all reasonable attorneys' fees and costs incurred by 
       the non-breaching party in connection with such breach.

       In November 2010, Jeffrey filed a motion to enforce the decree of dissolution, 

seeking an order allowing him to list the rental property for sale on the ground that 

Ranie failed to make mortgage payments on the rental property.  He also requested 

an award of attorney fees.  In his motion dated November 2, 2010, Jeffrey alleged 

that Ranie had yet to pay the October 2010 mortgage payment and was late paying 
the January 2010 mortgage payment.1           The record shows that Ranie made the 

October 2010 payment on November 2, 2010, the same date Jeffrey filed the motion 

to enforce the decree of dissolution.  The trial court granted Jeffrey's motion, 

allowing him to list the rental property for sale, and awarded him $843.00 in attorney 

fees.

1 Although Jeffrey alleges that Ranie was late paying the January 2010 payment, 
the record indicates that she was late making the March 2010 payment, not the 
January 2010 payment.  Ranie concedes that she was late paying the March 2010 
payment:  "I have always had the condominium rented and the payments have 
always been paid on time, except for one month in March, 2010, when my renter 
moved out and I made the payment 30 days late."            The discrepancy in the dates 
makes no difference in our analysis, nor does the fact that Ranie was in fact late 
with two payments, rather than only one as she asserts.
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No. 66411-5-I / 3

       Ranie argues that the trial court erred by granting Jeffrey's motion because she 

did not "fail to make" the two mortgage payments, but rather was late in making 

them.  She argues, with no citation to authority, that making a late payment does not 

constitute a failure to make a payment.  Jeffrey argues, with no citation to relevant 
authority,2 that a "payment due by a certain date if not paid is a failure to pay."  

Presumably, his argument is that a payment due by a certain date that is in fact 

paid, albeit after the due date, constitutes a failure to pay.  Resolution of this issue 

lies in the language of the property settlement agreement.

       The interpretation of the language of a property settlement agreement is a 
question of law that we review de novo.3         In construing a written agreement, the 

intent of the parties controls and is to be ascertained from reading the agreement as 
a whole.4  Clear and unambiguous terms of an agreement are enforced as written.5  

We give words used in an agreement their ordinary, usual, and popular meaning 

unless the agreement clearly demonstrates a contrary intent, and we do not read 
ambiguity into an agreement where it can reasonably be avoided.6

       Here, the terms of the property settlement agreement regarding Jeffrey's right 

to require the listing of the real property for sale are clear and unambiguous.  The 

agreement provides that if Ranie "fails to make the mortgage payments on the real 

property awarded to her, [Jeffrey] may make the payments and receive 

2 Jeffrey's citation to Saluteen-Maschersky v. Countrywide Funding Corp., 105 Wn. 
App. 846, 22 P.3d 804 (2001), is inapposite.
3 In re Marriage of Gimlett, 95 Wn.2d 699, 705, 629 P.2d 450 (1981).
4 Dice v. City of Montesano, 131 Wn. App. 675, 683-84, 128 P.3d 1253 (2006).
5 Grey v. Leach, 158 Wn. App. 837, 850, 244 P.3d 970 (2010).
6 Grey, 158 Wn. App. at 850.

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reimbursement and/or at his option, require that the real property be listed for sale 

immediately."   The ordinary, usual, and popular meaning of the phrase "fails to make the 

mortgage payments on the real property" does not include making late payments.  

Failing to make a mortgage payment means that no payment, timely or untimely, is 

ever made.  Had the parties intended for Jeffrey's right to require that the property 

be listed for sale to arise upon Ranie's failure to timely make a mortgage payment, 

they could have and should have included the word "timely" in the provision.  As it 

exists in the property settlement agreement, the provision unambiguously provides 

that Jeffrey's right to require that the property be listed for sale arises only when 

Ranie fails to make a mortgage payment.  The record shows that Ranie has not 

failed to make any payment on the mortgage on the rental property.  She did, 

however, make at least two late payments, the latest of which was made on the 

same date Jeffrey filed his motion to enforce the decree of dissolution.  The record 

shows that no late charge was imposed with regard to this payment.  Under these 

circumstances, Jeffrey's right to require the immediate listing of the rental property 

for sale did not arise.

       The trial court erred in granting Jeffrey's motion to enforce the decree of 

dissolution.  Accordingly, we reverse the trial court's order granting Jeffrey's motion 

and awarding him attorney fees.

WE CONCUR:

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