Opinion
NO. 2015-CA-000634-ME
02-12-2016
DONNA NIHILL-GENTRY APPELLANT v. DARYN PAUL GENTRY APPELLEE
BRIEF FOR APPELLANT: Daniel Carroll Kelly Springfield, Kentucky BRIEF FOR APPELLEE: Robert W. DeWees, III Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WASHINGTON CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 09-CI-00170 OPINION
AFFIRMING BEFORE: NICKELL, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Appellant appeals from an order of the Washington Circuit Court which held that Appellee's obligation to make payments on the mortgage of the marital home was a substitute form of child support and that said obligation to pay the mortgage would terminate upon the 19th birthday of the parties' child. We find no error and affirm.
The parties to this case divorced in 2010. At the time, they had a minor child who was around 11 years old. The minor child is autistic and the marital home had been remodeled to fit his needs. At the time of the divorce, the parties entered into a separation agreement. At issue in this case is section 2 of the agreement. That section, titled "CHILD SUPPORT", states in pertinent part:
There shall be no child support paid by Respondent [Daryn Gentry], instead respondent shall pay the first and second mortgage payments on the family residence, which currently amounts to $1,230.00 monthly, which amount currently exceeds the statutory child support obligation. Respondent's gross monthly income is $3,000.00, the Petitioner [Donna Nihill-Gentry] is $225.00 monthly, this would indicate a child support obligation for Respondent of $451.00.
Appellee made the mortgage payments as required until 2013 when he filed bankruptcy. In April of 2015, Appellant filed a motion to enforce the separation agreement and require Appellee to make the mortgage payments. Appellee argued that the mortgage payments should be classified as child support and terminate when the child reaches the age of majority. Appellant argued that the separation agreement contemplates that no child support will be required, but that Appellee's obligation to pay the mortgage was a form of property settlement and should not terminate until the mortgage is paid off. A hearing was held and the trial court found that the mortgage payments were a form of child support and would terminate when the child turns 19 years old. This appeal followed.
This case revolves around the separation agreement and whether the mortgage payments are a form of child support or property settlement. If the mortgage payments are child support, then the payments would terminate when the child becomes emancipated due to age, which the trial court in this case determined to be 19 years old. Kentucky Revised Statute (KRS) 403.213(3). If the mortgage payments are part of the property settlement, then it cannot be modified absent extraordinary circumstances. Fry v. Kersey, 833 S.W.2d 392, 393-94 (Ky. App. 1992).
"It is well established that construction and interpretation of a written instrument are questions of law for the court. We review questions of law de novo and, thus, without deference to the interpretation afforded by the circuit court." Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998) (citations omitted).
When no ambiguity exists in the contract, we look only as far as the four corners of the document to determine that intent. See 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 448 (Ky. 2005). "The fact that one party may have intended different results, however, is insufficient to construe a contract at variance with its plain and unambiguous terms." Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002).Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 703 (Ky. 2006).
The trial court believed that the mortgage payments were to be paid in the place of child support. We agree with the trial court. After examining the four corners of the separation agreement, we believe that the mortgage payments were a form of child support. Section 2 of the separation agreement was titled "CHILD SUPPORT" and it states that Appellee will pay the mortgage "instead" of child support.
Because the mortgage payments are considered child support, KRS 403.213(3) states that child support payments terminate when the child is emancipated due to age. Here, the trial court used its discretion, Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000), and determined that Appellee's child support obligation, the paying of the mortgage, shall terminate when the child turns 19 years old. The trial court's judgment was not erroneous; therefore, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Daniel Carroll Kelly
Springfield, Kentucky BRIEF FOR APPELLEE: Robert W. DeWees, III
Louisville, Kentucky