Bolton v. Bolton, 70244

• Decision Date: 22 July 1997
• Docket Number: No. 70244,70244
• Citation: 950 S.W.2d 268
• Parties: In re the MARRIAGE OF Janice Marie BOLTON, Petitioner/Respondent, v. Edward Leroy BOLTON, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 268

950 S.W.2d 268

In re the MARRIAGE OF Janice Marie BOLTON, Petitioner/Respondent, v. Edward Leroy BOLTON, Respondent/Appellant.

No. 70244.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 22, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 26, 1997.

Diekman & Leightner, James J. Leightner, Clayton, for appellant.

Summers, Compton, Wells & Hamburg, Richard H. Ulrich, Andrea L. Weiss, St. Louis, for respondent.

KAROHL, Judge.

Edward Leroy Bolton (Father) appeals from a March 15, 1996, judgment which modified a December 13, 1993 dissolution of his marriage with Janice Marie Bolton (Mother). The trial court increased Father's child support obligation for their younger son Michael, born December 29, 1979. The older son, Edward Jr., was emancipated before the modification. Father argues in his four points on appeal the trial court erred: (1) in its interpretation of the parties' unambiguous settlement agreement; (2) in permitting Mother's lawyer, who had withdrawn from the case immediately before the trial, to testify regarding issues in dispute; (3) in overstating Father's and understating Mother's income on its Rule 88.01 and Form 14 calculation; and (4) in ordering Father to pay Mother $250 for damages to an automobile used by Edward, Jr.

On December 13, 1993, a court dissolved the marriage. The dissolution decree incorporated the parties' settlement agreement. Prior to June 6, 1995, Father filed a motion to recover advances paid to Mother on the theory of monies had and received. On June 6, 1995, Mother filed a motion for an order of contempt against Father. Later, she filed a motion to modify and increase the amount of child support for their younger son. Father filed a cross motion to modify his child support obligation. On November 15, 1995, Father amended his monies had and received motion to include a claim of breach of contract. The court consolidated and heard all the motions together.

After the hearing, the trial court first entered judgments on January 25, 1996. It modified the judgments on March 8, and March 15, 1996. The parts of the trial court's judgments that are relevant to Father's appeal include orders: (1) increasing child support for the unemancipated son from $625 per month to $1,108 per month, retroactive to October 1, 1995; ¹ (2) Father pay Mother $250 for an automobile repair; (3) denying Father's prayer for monies had and received by Mother; (4) Father pay $752.45 per month to Mother as the total monthly house payment on the jointly-owned former family residence, until sold, and any increases on the monthly obligation on the note and deed of trust; and (5) increasing child support based on the court's calculation of both parties' income, derived in part by the inclusion of an average annual bonus for Father and the exclusion of Father's monthly payment to Mother as well as the income tax deductions for real estate taxes and interest on the residence she occupies with their children in accord with the property settlement agreement and dissolution decree.

Father's first point is the trial court erred in finding he is obligated to pay and Mother may retain all of the $752.45 per month he pays to her. She pays the mortgage holder on the note and deed of trust on their former residence, as well as any future increase in these payments. He argues this alters the terms of the parties' clear and unambiguous agreement and renders a provision of the parties' settlement agreement meaningless because she agreed to pay "all maintenance, taxes, insurance, and upkeep associated with said residence."

We review in accord with Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). This standard has been consistently applied to divorce dissolution cases. Mason v. Mason, 873 S.W.2d 631, 633 (Mo.App. E.D.1994). The decree will stand unless it involves an erroneous declaration of the law. Id. Sections 452.325.2 and .5 RSMo 1994 recognize separation agreements as enforceable contracts. These agreements, once incorporated into a court's dissolution decree, can also be enforced by the courts, just like any judicial judgment. In Re Marriage of Linnenburger, 741 S.W.2d 872, 876 (Mo.App.1987).

Father argues the trial court misapplied the law in its enforcement of settlement agreement paragraphs 7.2(b) and (c). Paragraph 7.2(b) provides, in part, that "... Mother shall be responsible for all maintenance, taxes, insurance, and upkeep associated with said residence ..." (Emphasis added). Paragraph 7.2(c), states that "Father shall, however, be responsible and shall pay to Mother the monthly payments on the note and first deed of trust as described above (now $752.45) ..." (Emphasis added).

The parties refinanced the loan secured by a deed of trust on their martial residence on October 1, 1993, prior to the December 13, 1993 dissolution decree. The monthly payment associated with the note for principal and interest was $555.62. That amount increased to $752.45 when taxes and insurance were included. Father alleged he is entitled to recover the $196.83 difference. From December 13, 1993, through January, 1995, Father paid $752.45 per month to Mother. In January, 1995, Father realized he was paying not only the principal and interest on the note, but taxes and insurance as well. He argues the trial court order excuses Mother's contractual obligation to pay the taxes and insurance on the property, noting in particular that she has benefited from the use of the income tax deduction as if she was paying them.

Father contends he agreed to pay only the principal and interest on the note and deed of trust ($555.62), or in the alternative, to make available to Mother the amount of principal, interest, insurance, and taxes ($752.45), subject to reimbursement from Mother for taxes and insurance ($196.83). Mother responds Father is responsible for the principal, interest, insurance, and taxes on the property, and her "responsibility" was merely to see that the payment was made to the mortgage company. Both parties have argued the agreement is unambiguous. Thus, a court must determine the correct interpretation of the settlement agreement provisions from their words alone, without the use of extrinsic evidence. "In contractual interpretation, the primary rule is to ascertain the intent of the parties and then give effect to that intent. When there is no ambiguity in the contract, the intent of the parties is to be gathered from [the contract] alone." Marshall v. Pyramid Development Corp., 855 S.W.2d 403, 406 (Mo.App. W.D.1993). The trial court, however, does not maintain the power to modify property settlement terms of a separation agreement, once the agreement is incorporated into a dissolution decree. Stark v. Thierjung, 714 S.W.2d 830, 832 (Mo.App.1986).

A separation agreement is an integrated writing; each provision bears on the others. In Re Marriage of Linnenburger, 741 S.W.2d at 878. If a court were to enforce some of the terms of the agreement while ignoring others, the agreement may not only become imbalanced, but may also become an agreement not in accord with what the parties originally had intended it to be. Id. Thus, the terms of a contract must be read as a whole. Village of Cairo v. Bodine Contracting Company, 685 S.W.2d 253, 264 (Mo.App.1985). "Each term is construed to avoid an affect which renders other terms meaningless: a construction which attributes a reasonable meaning to all of the provisions of the agreement is preferred to one which leaves some of them without function or sense." Id.

Applying these rules, Mother's interpretation fails. "In interpreting contracts, courts presume that the words used are intended to have their natural and ordinary meaning." Marshall, 855 S.W.2d at 407. Mother approved and signed an agreement which provides she is "responsible" for all taxes and insurance associated with the residence she would continue to occupy with the two children until occurrence of an event agreed upon by the parties in the settlement. In the same sentence she agreed to be "responsible" for maintenance and upkeep. These activities are not compatible with her contention Father is obligated to pay the taxes and insurance. Her argument simply ignores the plain meaning of paragraph 7.2(b). She contends the words "responsible" in paragraphs 7.2(b) and (c) have different meanings, where Father is "responsible" to pay, while Mother is only "responsible" to deliver payment to the holder of the deed and note of trust. The word in successive paragraphs, both involving the same subject, has the same meaning. Each party is "responsible" in the sense of the word "obligated."

We find the clear and unambiguous agreement is for Father to pay the full amount of the house payments, including principal, interest, taxes and insurance to Mother; Mother must make the payments on the joint obligation on the note and deed of trust; Mother will owe Father the total he advances and she uses to pay taxes and insurance no later than when the house is sold in compliance with the provisions of the settlement agreement. Since the parties failed to define what constituted elements for "monthly payments" in paragraph 7.2(c)...