(dissenting) — I dissent. Their 1975 decree of dissolution expressly required the father, Respondent Malcolm Burgess, to pay to the mother, Appellant Sheryl Page (Burgess) Boisen, as "additional support” for the children’s education, "one-half of the board, room, tuition, and books and other necessary expenses for a four-year college education of each child. ” (Emphasis added.) At issue on appeal is the mother’s right to enforce this provision where the father paid none of the children’s college expense, which were then funded by their stepfather.
Ms. Boisen has assigned error to the following findings *922and conclusions of the trial court: (a) that Mr. Burgess "has satisfied all child support requirements” (conclusion of law 2); (b) that Dr. Boisen "gratuitously” paid the children’s college expenses (conclusion of law 4); and (c) that Ms. Boisen paid none of the children’s college expense (conclusion of law 5). These findings and conclusions are not supported by the record. Conclusion of law 2 is contrary to the fact that Mr. Burgess paid none of his children’s college expenses and therefore has not satisfied that portion of his child support requirements. Conclusion of law 4 ignores the uncontroverted evidence of Dr. Boisen’s expectation of reimbursement by Mr. Burgess. Conclusion of law 5 is contrary to evidence that Ms. Boisen paid some of the children’s college expenses.
Where subject to interpretation, "the construction of [a dissolution] decree and any contract incorporated therein is a question of law.” Byrne v. Ackerlund, 108 Wn.2d 445, 455, 739 P.2d 1138 (1987) (citing In re Marriage of Gimlett, 95 Wn.2d 699, 704-05, 629 P.2d 450 (1981)). A reviewing court, charged with the task of ascertaining the intended effect of a divorce decree, is limited to examining the provisions of the decree. Puckett v. Puckett, 41 Wn. App. 78, 82, 702 P.2d 477 (1985). If the decree is unambiguous, it is not open to construction. The decree can be considered ambiguous only if its terms are uncertain or susceptible to more than one meaning. Harding v. Warren, 30 Wn. App. 848, 850, 639 P.2d 750 (1982).
Here the decree unambiguously required Mr. Burgess to pay half of his children’s college expenses. His obligation was not qualified in any way. Nor did he seek modification of this child support provision.22
"Interpretation by the reviewing court must be based upon the intent of the parties as reflected in the language of the agreement.” Byrne, 108 Wn.2d at 455 (citing Kinne v. Kinne, 82 Wn.2d 360, 362, 510 P.2d 814 (1973)). "Courts can neither disregard contract language which the parties *923have employed nor revise the contract under a theory of construing it.” Wagner v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279 (1980). Yet here, "under a theory of construing it,” the majority disregards and revises the plain language of the parties’ 1974 separation agreement, incorporated into the decree. Wagner, 95 Wn.2d at 101.
The majority acknowledges that when Mr. Burgess and Ms. Boisen entered the separation agreement, "they clearly intended that Mr. Burgess would pay one-half the children’s college expenses.” Majority opinion, at 921. Although the decree is silent as to the source of the other half,23 the majority assumes, "[a] necessary corollary was that third-party payments covering all (100 percent) of the children’s college expenses would be credited one half to Mr. Burgess, and one half to whoever was obligated to pay the remainder of the college expenses.” Majority opinion, at 921. The record does not support this assumption. Regardless of who was intended to pay or who actually paid the other half, Mr. Burgess’ obligation to pay one-half remains unaltered.
"When it became clear that Mr. Burgess was not going to pay,24 the mother’s second husband, Dr. Elliot Boisen, advanced the children’s college expenses so that they could pursue their educations without interruption. Following their separation and December 1991 dissolution, Dr. Boisen and Ms. Boisen agreed that Dr. Boisen would continue to pay the children’s college expenses.25 Dr. Boisen was "aware of the agreement and promise by Malcolm Burgess to help out on their college expenses, and [he] was expect*924ing ultimately to get reimbursed for that.” These expenses totaled about $211,796.
When his deposition was taken in 1995, Dr. Boisen was no longer expecting to be personally reimbursed by Malcolm Burgess, but rather designated
that [the reimbursement] should be going to Page, . . . since a lot of it came as part of —
Part of community property. These moneys were spent from community funds of the parties until dissolution in December of '91, and then by me. Since that time I have considered it the right of Page to receive the money paid by Malcolm as his share of the college expenses.
The majority deems significant their separate property characterization of Dr. Boisen’s postseparation payments. But it is irrelevant whether the moneys paid by Dr. Boisen came from the Boisens’ marital community or Dr. Boisen’s separate property. Dr. Boisen was not an anonymous, third-party benefactor, but rather had been Ms. Boisen’s husband and the children’s stepfather,26 who generously enabled the children to pursue their educations rather than await contributions from their intransigent father.
The majority’s characterization of Dr. Boisen’s payments as "gifts to the children” neither extinguishes the children’s college expenses nor absolves Malcolm Burgess of his obligation to pay one-half, for which no exclusions were enumerated for gifts, scholarships, loans, or moneys earned by the children. Majority opinion, p. 916-17 n.9. I agree with the majority that Dr. Boisen clearly intended to benefit the children. But he also intended to gift Ms. Boisen, not Mr. Burgess, from whom he expected reimbursement.
The courts should neither reward nor invite parents to *925avoid court-ordered child support obligations, especially here, where the payer parent’s intransigence created a major breach, remedied, not by the father, but by the children’s kind stepfather.
There is no language in the decree, there are no facts, and there is no law justifying the trial court’s utilization of Dr. Boisen’s voluntary payments on the children’s behalf to extinguish Mr. Burgess’ court-ordered obligation to provide for his children’s education. Judicial alchemy should not be used to transform Mr. Burgess’ nonpayment into a "satisfied” obligation.
I would vacate conclusion of law 2, that Mr. Burgess "has satisfied all child support requirements,” reverse, and remand to the trial court to require Mr. Burgess to pay Ms. Boisen half of the children’s college-related expenses, consistent with the express language of the decree.
Review denied at 134 Wn.2d 1014 (1998).
Specifically Mr. Burgess did not seek modification to allow satisfaction of his obligation with his offer to co-sign educational loans.
The parties may have expected the other half to come from the children’s own earnings, gifts from relatives or friends, loans, scholarships, or any number of possibilities other than Ms. Boisen alone.
Mr. Burgess’ refusal to pay college expenses followed a period during which he was also in arrears on precollege child support payments.
The Boisens’ dissolution decree did not require Dr. Boisen to pay the children’s college expenses, nor did it specify to whom Mr. Burgess’ reimbursement would be made because they were not sure whether Malcolm Burgess would repay his share of the college expenses.
Even if arguably required by former RCW 26.16.205 (1969) to support his stepchildren during the marriage, Dr. Boisen’s voluntary payment of the children’s college expenses in no way absolved Malcolm Burgess of his obligation to pay half.