Opinion
NO. 2011-CA-001848-ME
08-03-2012
NEAL L. ROSENBLATT APPELLANT v. MARIA A. ROSENBLATT (NOW PENNER) APPELLEE
BRIEFS FOR APPELLANT: Wendi Swinson Wagner Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NO. 07-CI-501464
OPINION
AFFIRMING
BEFORE: COMBS AND STUMBO, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, SENIOR JUDGE: Neal Rosenblatt appeals from a post-decree order of the Jefferson Family Court modifying the provisions of a settlement agreement which he entered into as part of the dissolution of his marriage to Maria A. Rosenblatt (now Penner). Neal argues that the trial court erred by denying his motion to modify the provisions of the agreement requiring him to pay half of his children's extraordinary school and extracurricular activity expenses, even though he is now paying the maximum amount provided under the Child Support Guidelines. Finding no error in the trial court's interpretation of the agreement, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
The facts of this case are not in dispute. Neal and Maria Rosenblatt were married in 1996 and divorced in 2007. Three children were born during the marriage. During the dissolution proceedings, the parties entered into a Marital Settlement Agreement (the MSA), which, among other things, provided for child support and payment of the children's other expenses. In pertinent part, Neal agreed to pay child support in the amount of $250 per month. This amount represented a deviation from the Kentucky Child Support Guidelines due to Neal's unemployment. The MSA further provided that child support could be modified after two years. Neal also agreed to equally divide the expenses for the children's extracurricular activities. The trial court adopted the MSA in a decree of dissolution entered on December 14, 2007.
In late 2010, Neal obtained employment with a civilian contractor providing services to the military in Afghanistan. Shortly thereafter, Maria filed a motion to modify child support based on the material change in Neal's income. In March 2011, the trial court entered an agreed order increasing Neal's child support obligation to $1,554 per month until the trial court ruled on Maria's motion.
Following a hearing, the trial court entered an order on August 17, 2011. The court set Neal's child support obligation at $1,884 per month during those times he is stationed in Afghanistan and receiving hazardous-duty and hardship pay, and $1,539 per month during those times he is not receiving hazardous-duty pay. The greater amount represents the maximum payable under the Child Support Guidelines. However, the trial court denied Neal's motion to modify the requirement that he pay half of the children's extracurricular expenses.
Neal filed a motion to modify the latter provision of the order, arguing that his original agreement to pay half of the extracurricular expenses was primarily based upon the parties' downward deviation from the Guidelines. Since he is now paying support as provided by the Guidelines, Neal contends that he should now be relieved of that additional obligation. The trial court disagreed, concluding that his agreement to pay half of the extracurricular expenses was independent of the child support provisions of the MSA. Neal now appeals to this Court.
As an initial matter, we note that Maria has not filed a brief in this appeal. But while a party's failure to file a brief may be taken as a confession of error in certain cases, Kentucky Rules of Civil Procedures (CR) 76.12(8)(c), such a sanction is inappropriate in appeals involving child custody or support. Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky. 1971). Therefore, Maria's failure to file a brief is not determinative.
Moreover, the sole question presented in this case involves an issue of law - the trial court's interpretation of the MSA. "The terms of a settlement agreement set forth in a decree of dissolution of marriage are enforceable as contract terms." Money v. Money, 297 S.W.3d 69, 71 (Ky. App. 2009); see also KRS 403.180(5). "The construction and interpretation of a contract is a matter of law and is reviewed under the de novo standard." Money, 297 S.W.3d at 71; see also Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
Neal first notes that KRS 403.212 does not provide for payment of a child's extracurricular expenses in excess of the amount provided under the Child Support Guidelines. Thus, once the court set support at the maximum amount allowed under the Guidelines, he contends that this provision of the MSA became inapplicable. However, nothing in KRS 403.212 or the Child Support Guidelines prevents parents from agreeing to pay more than the amounts provided by law. Pursley v. Pursley, 144 S.W.3d 820, 824 (Ky. 2004). A court may be authorized "to incorporate and enforce, as terms of the decree, agreement terms that the court would have no independent power to order." Id. (Footnote omitted). Consequently, the terms of the MSA requiring Neal to pay half of the children's extracurricular expenses are enforceable notwithstanding the fact that the total amount of support now exceeds the Guidelines.
Neal primarily asserts that his original agreement to pay for half of the children's extracurricular expenses was based on the parties' downward deviation from the Child Support Guidelines. He contends that the parties never intended for the total amount of support to exceed the Guidelines. Furthermore, Neal argues that since he is now paying the full amount provided under the Guidelines, the additional obligation is inequitable and results in an unjust enrichment to Maria.
As noted above, the trial court found that the provision of the MSA providing for payment of extracurricular expenses was a separate and distinct agreement from the provisions relating to child support. This conclusion is supported by the clear language of the Agreement. Section II of the MSA sets out the parties' agreements regarding child support. Subsection A specifically provides for child support, and further provides that the amount is subject to modification after two years and that "child support shall be recalculated in accord with the Kentucky Child Support Guidelines." However, subsections B and C set forth separate agreements relating to payment of work-related childcare expenses and extraordinary school and extracurricular activity expenses, respectively. Neither of these provisions provides for modification or indicates that they are contingent upon the amount of child support payable under Subsection A.
"Absent an ambiguity in the contract, the parties' intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence." Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). "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." Id. Based on the clear and unambiguous language of the MSA, we agree with the trial court that the provision of the MSA relating to payment of the children's extracurricular expenses is separate and distinct from Neal's child support obligation. Consequently, the trial court's modification of child support does not entitle Neal to a modification of his agreement to pay half of these expenses. Therefore, the trial court did not err by ordering him to continue to pay these amounts.
Accordingly, the post-decree order of the Jefferson Family Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Wendi Swinson Wagner
Louisville, Kentucky
NO BRIEF FILED FOR APPELLEE.