Opinion
NO. 2016-CA-001121-ME
05-05-2017
SHANA VENTOLA APPELLANT v. CHRISTOPHER WATHEN APPELLEE
BRIEF FOR APPELLANT: Katie M. Brophy Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 08-CI-502660 OPINION
REVERSING
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BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES. COMBS, JUDGE: Shana Ventola brings this appeal from an order of the Jefferson Family Court entered April 25, 2016, concerning a child support arrearage and the circuit court's subsequent order entered upon Ventola's motion to alter, amend, or vacate. Based upon the failure of Christopher Wathen to file an appellee brief with this court, we reverse the disputed portions of the judgment.
Ventola and Wathen married in 1992. Ventola filed a petition for dissolution of marriage in the family court on July 18, 2008. By decree entered October 17, 2008, the family court dissolved the marriage. The court's decree of dissolution incorporated a property settlement agreement that awarded the parties joint custody of their two children and addressed Wathen's child support obligation. It also provided that Wathen would pay the costs of the children's parochial school education and 70% of their non-tuition school expenses as well as fund their college savings accounts. Wathen was not represented by counsel.
In March 2011, Ventola advised Wathen that she intended to remarry and move to New Jersey. In June, she sought a court order allowing her to relocate the children. Following mediation in August, an agreed order was entered. In relevant part, the order provided that Ventola would move with the children to New Jersey; that Wathen would pay $700.00 per month for child support through July 31, 2012; and that "for the school year 2011-2012 [Ventola] shall be responsible for and pay in full the entire tuition costs for the children to attend Catholic schools in New Jersey." The agreement provided specifically that Wathen was "released of his obligation to pay any or all of the children's tuition for the school year 2011-2012." Once again,Wathen was not represented by counsel.
In October 2015, Ventola returned to court. She sought entry of wage garnishment orders. She claimed $700.00 per month for child support and $1290.00 per month for the children's tuition expenses.
The family court conducted a hearing on February 26, 2016. Ventola appeared telephonically from New Jersey and was represented by counsel. Wathen did not appear.
At the hearing, Ventola testified that Wathen had paid $17,000.00 toward the children's tuition costs from the school year 2012-2013 forward and that he owed $22,520.23. She indicated that he had not contributed to the children's school-related expenses, and she claimed $2,484.92 from the school year 2012-2013 forward. She sought $1,576.99 for medical expenses incurred on behalf of the children and $20,354.61 for a child support arrearage -- for a total of $46,936.52.
Following the hearing, the family court's order regarding the wage garnishment was entered on April 25, 2016. The order provided, in part, as follows:
Ms. Ventola testified that Mr. Wathen did not pay child support for a period of time. According to her, when he resumed making child support payment to her, payments were sporadic and in differing amounts. He would sometimes send more and sometimes send less than $700 monthly.
At the rate of $700/month, child support for the 48 months between August 2011 and August 2015 would be $33,600.00. According to the evidence presented, Mr. Wathen paid a total of $30,245.39 to Ms. Ventola during that time period, $3,354.61 less than the amount claimed due.
In spite of the absence of any clear agreement between the parties regarding the child support obligation for August 1, 2012 through August 2015, the Court
concludes that Mr. Wathen was responsible for contributing $700/month for the children's support throughout that time period. . . .
The Court concludes that Mr. Wathen is in arrears by $3,354.61. He should have paid $33,600 in child support during the relevant period ending in August 2015, but only paid $30,245.39. . . .
With respect to the tuition costs and other educational expenses that Ventola claimed, the family court concluded as follows:
In the [mediated agreed order], the parties abandoned their original agreement and commitment that both children would continue in parochial schools through high school graduation. They also specifically released Chris from his obligation to pay tuition and 70% of other education costs. By agreement, they left open both issues - whether one or both of the children would continue in parochial school after the 2011-12 school year and if so, who would pay for tuition and other costs. Most importantly, the parties' 2011 agreement set up a specific procedure for addressing those issues, if either party were so inclined:
* Modification of the Mediated Agreed Order by mutual agreement;
* Modification of the Mediated Agreed Order through mediation; or
* If one or both of the parties determined it was necessary and appropriate, seek a ruling from this Court.
In the almost four (4) years since the Court entered the 2011 Mediated Agreed Order as the Order of the Court, neither party requested that the Court order mediation to determine whether one or both of the children should continue in parochial school or, if so, whether [Wathen] should be required to pay some or all of the costs associated with such attendance. Neither party sought a ruling from the Court on either of these issues.
Rather, for the first time in 2015, Ms. Ventola asked the Court to order garnishment of Mr. Wathen's wages, in part, to pay for tuition costs and other educational expenses incurred between August 2012 and August 2015. During the hearing, Ms. Ventola claimed that the parties had reached an informal agreement regarding tuition and educational expenses. She claims that she and Mr. Wathen discussed the issue and agreed that both children would continue in parochial school in New Jersey. At best, Ms. Ventola's position is that, during their conversation(s), Mr. Wathen agreed he would send some extra money for tuition with the child support payment each month, "as he could." Based upon these assertions, Ms. Ventola now asks the Court to conclude that Mr. Wathen should be held responsible for all of the tuition for the school years 2012-13, 2013-14, and 2014-15 (approximately $40,000.00) along with various educational expenses totaling $3,549.89. The Court respectfully declines that request.
As of August 15, 2011, the Mediated Agreed Order was the operative Order governing the parties' legal responsibilities relating to [the children]. If either party wished to modify the terms of that Mediated Agreed Order for any of the period following July 31, 2012, the terms of that Order required them to do so by subsequent agreed order, mediated agreed order, or order of this Court. Ms. Ventola did not take any of these actions to attempt to reinstate Mr. Wathen's responsibility to pay the school tuition or any portion of additional educational expenses, for any of the period beginning on August 1, 2012, and she failed to establish any binding agreement between the parties. . . .
Ventola filed a timely motion to alter, amend, or vacate. Concerning the court's conclusion that she had not established the parties' oral agreement as to the costs of the children's parochial school education, Ventola requested that the court make additional findings. Wathen did not respond.
The family court entered its final order on July 14, 2016. The order of April 25, 2016, was amended to include the following:
Ms. Ventola testified that she received sporadic child support payments from Mr. Wathen between August 2011 and August 2015. She received no support for months at a time, then lump sum payments as large as $4,200. Because Mr. Wathen agreed to pay extra "as he could" toward the children's private school tuition, any payment that Ms. Ventola received that was in excess of Mr. Wathen's monthly child support obligation of $700 per month she designated as a tuition payment. According to Ms. Ventola's uncontroverted testimony, she received a total of $29,600. She designated $12,600 as child support payments and $17,000 as tuition payments, though there was no indication that Mr. Wathen intended any payment to be applied toward tuition. Further, as explained in greater detail elsewhere in the Court's Order, Mr. Wathen was not under a continuing obligation to pay the children's tuition. Accordingly, the Court finds that the total amount that Ms. Ventola received should be applied toward Mr. Wathen's child support obligation.This timely appeal followed.
By order entered on August 18, 2016, and upon our own motion, this appeal was expedited.
On appeal, Ventola argues that the family court abused its discretion by failing to find that the parties had orally agreed that Wathen would resume paying the children's tuition and school expenses following the 2011-2012 school year. She contends that the only evidence submitted concerning the parties' verbal agreement of July 2012 was clear and unequivocal. She testified, without reservation, that Wathen had agreed to pay the children's parochial school costs going forward. She indicated that he would not agree to have the amount due withdrawn automatically from his bank account, but that he had agreed that "he would send extra as he could in the support payments."
Wathen has not filed an appellee brief. CR 76.12(8)(c) provides a range of penalties for his failure to do so. We may:
Kentucky Rules of Civil Procedure. --------
(i) accept the appellant's statement of the facts and issues as correct;CR 76.12 (8)(c). We elect to take Wathen's failure to file an appellee brief in this matter as a confession of error. Wathen's decision not to participate in this appeal -- as in most of the proceedings in this case -- has clearly and perhaps unfairly placed him in a default posture. However, because he elected to introduce absolutely no evidence on his own behalf, the only evidence properly before the tribunal was that presented by Ventola.
(ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or
(iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.
Therefore, pursuant to CR 76.12(8)(c), we reverse the disputed portion of the family court's judgment without considering the merits of the case.
ALL CONCUR. BRIEF FOR APPELLANT: Katie M. Brophy
Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.