Theresa Bowe Yarish v. Mark Alan Yarish ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Annunziata
THERESA BOWE YARISH
MEMORANDUM OPINION *
v. Record No. 1893-08-4 PER CURIAM
MAY 12, 2009
MARK ALAN YARISH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
(Demian J. McGarry; The Carlberg Law Firm, on brief), for
appellant. Appellant submitting on brief.
(Susan M. Butler; Luke S. Abraham; Shoun, Bach & Walinsky, P.C.,
on brief), for appellee. Appellee submitting on brief.
Theresa Bowe Yarish (mother) appeals from the trial court’s order regarding the payment of
private school tuition. Mother argues that the trial court erred by misinterpreting a clause in the
parties’ final decree of divorce and ordering her to contribute to private school tuition and expenses.
For the following reasons, we affirm the judgment of the trial court.
BACKGROUND
The parties divorced on October 28, 2005. Mark Alan Yarish (father) had sole legal and
physical custody of the parties’ two children. One of the children attended a residential therapeutic
school, known as New Leaf Academy. The tuition expenses at New Leaf Academy included the
cost of intensive therapy for the child.
The parties’ final decree required that the parties post a bond for child support pursuant to
Code § 20-114. The provision for the bond states:
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Pursuant to Virginia Code § 20-114, the sum of $82,845 shall be
withheld from each party’s share of the net proceeds from the sale
of the marital home, for a total of $165,690. This amount shall be
held by counsel for Plaintiff in an interest bearing escrow account.
Disbursements shall be made from this account for the children’s
tuition, including room and board, if applicable, fees and costs, and
tutoring expenses, as recommended by either child’s school,
beginning with the Fall, 2005 semester. Plaintiff shall be
reimbursed for payments of tuition, room and board, fees and costs
he has made to New Leaf Academy and the McLean School for the
Fall 2005 semester. Counsel for Plaintiff will provide copies of the
bank statements and invoices for tuition to Counsel for Defendant
as they are received. Plaintiff shall submit any appropriate bills to
his health insurance carrier and shall pursue reimbursement of
coverage for the expenses. To the extent that any health insurance
reimbursement is received for tuition, room, board, fees and costs,
they shall be deposited in the escrow account and credited equally
to the parties toward their contribution. In the event any balance
remains, it will be divided equally between the parties.
The parties exhausted the funds from the bond before their child completed the program at
New Leaf Academy. Father paid the entire tuition for the last three months and one week of the
2006-2007 school year. On October 26, 2007, the court entered an order requiring father to be
solely responsible for the tuition, beginning with the 2007-2008 school year.
In 2008, father sought reimbursement from mother for unreimbursed medical expenses,
which included the tuition at New Leaf Academy for the time between the exhaustion of the bond
funds and the October 26, 2007 order. The trial court interpreted the final decree as holding both
parties equally responsible for these tuition expenses. Mother objected to this interpretation and
timely noted her appeal.
ANALYSIS
Mother argues that the trial court erred in interpreting the final decree to mean that, after the
bond was exhausted, each person was equally responsible for the children’s tuition expenses.
“[C]ourts have the authority to interpret their own orders. . . . Furthermore, when
construing a lower court’s order, a reviewing court should give deference to the interpretation
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adopted by the lower court.” Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510
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S.E.2d 255, 260 (1999) (en banc) (citations omitted). However, the interpretation needs to be
reasonable and shall be reviewed with an abuse of discretion standard. Roe v. Commonwealth,
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271 Va. 453, 458, 628 S.E.2d 526, 528 (2006) (citing Smoot v. Commonwealth, 37 Va. App.
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495, 500, 559 S.E.2d 409, 412 (2002)).
Wife contends that the court misinterpreted the last sentence of the bond provision, which
states, “In the event any balance remains, it will be divided equally between the parties.” Mother
argues that the phrase, “any balance remains,” means any balance remaining in the bond; however,
father argues that the phrase, “any balance remains,” means any balance due and owing. The trial
court reviewed the entire paragraph and the sentence in question, and construed their intended
meaning to be “any balance that’s due and owing or what the parties have agreed to do, not any
sums that are still there.” The trial court concluded that mother’s construction of the provision
would render meaningless the October 26, 2007 order, which held father solely responsible for all
tuition expenses.
“When dealing with discretionary decisions, only ‘when reasonable jurists could not
differ can we say an abuse of discretion has occurred.’” Robbins v. Robbins, 48 Va. App. 466,
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482, 632 S.E.2d 615, 623 (2006) (quoting Hernandez-Guerrero v. Commonwealth, 46 Va. App.
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366, 370, 617 S.E.2d 410, 412 (2005)); see also Brandau v. Brandau, 52 Va. App. 632, 641, 666
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S.E.2d 532, 537 (2008).
Here, the trial court did not abuse its discretion in its interpretation of the final decree;
therefore, we affirm the trial court’s ruling. Both parties’ requests for attorney’s fees and costs
incurred in the course of this appeal are denied.
Affirmed.
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