In re the Marriage of Litowitz , 146 Wash. 2d 514 ( 2002 )

Chambers, J.

(concurring in part and dissenting in part). I largely concur with the reasoning of the majority. However, I would remand for farther proceedings based on contract principles, equity, and public policy.

The majority grounds its result upon a contract between the parties and Loma Linda Center for Fertility and In Vitro Fertilization in Loma Linda, California. The majority fails, in my view, to emphasize that this contract must be considered in the context of a dissolution action. In a dissolution, principles of equity and public policy must be considered by the court in construing agreements between the parties regarding their dissolution. See RCW 26.09.080; see also In re Marriage of Matson, 107 Wn.2d 479, 485, 730 P.2d 668 (1986); In re Estate of Crawford, 107 Wn.2d 493, 498, 730 P.2d 675 (1986). Subject to equity and public policy, great weight should be given to the intent of the parties.

I conclude that the intent of the parties, as evidenced by the written contract, is consistent with equity and public policy as expressed by the Legislature and this Court and should be enforced. However, given that the trial court applied a different standard, remand is the appropriate remedy.