O'Connell-Starkey v. Starkey

Decision Date30 November 2007
Docket NumberNo. 05-166.,05-166.
Citation2007 VT 128,944 A.2d 897
PartiesDorothea E. O'CONNELL-STARKEY v. Gorden S. STARKEY.
CourtVermont Supreme Court



¶ 1. Defendant Gorden Starkey appeals from a family court order requiring him to pay college tuition for Kristen O'Connell-Starkey. In so requiring, the family court concluded that the latest amended divorce order was not ambiguous and found that, although it left the issue of college tuition open for contest, defendant had never contested it. Therefore, defendant remained obligated under a previous agreement to pay 60% of the child's college tuition. We affirm.

¶ 2. The following facts are uncontested. On June 5, 1985, plaintiff gave birth to a child while she and defendant were living together. On November 28, 1986, the parties married. In October 1993, when the child was eight years old, plaintiff filed for divorce. In November 1993, the parties stipulated to a temporary child support order in which they agreed to share legal and physical parental rights and responsibilities. That order established that the child was a child of the marriage. On June 30, 1994, the family court entered a final order based on the parties' stipulation. The final order maintained the provisions of the temporary order.

¶ 3. In April 1996, plaintiff moved to Virginia and, pursuant to provisions made in the final order, defendant took sole physical custody of the child. Plaintiff retained shared legal custody and visitation with the child during the summer. In December 1997, defendant moved to modify the child support order, seeking child support from plaintiff because of her move. The parties began negotiating an agreement regarding child support. From a DNA test dated March 9, 1998, defendant learned that there was a 99% probability that he was not the child's father. Nevertheless, on March 25, 1998, the family court approved a stipulated settlement of defendant's child support motion. The settlement agreement contained no mention of the DNA test. The amended order awarded child support to defendant, reduced plaintiff's share of the child's medical expenses, required both parties to maintain life insurance policies for the child's benefit, and required defendant to pay 60% and plaintiff to pay 40% of the child's college tuition, room, board, and fees.

¶ 4. Approximately three months later, in June 1998, plaintiff moved to modify the child support order. She requested sole legal and physical custody so that the child could move to Virginia and attend school there. Defendant opposed the motion, arguing that there had been no real, substantial and unanticipated change in circumstances. He further argued that the change was not in the child's best interests. On September 2, 1998, the family court entered a temporary order, again based upon a stipulation of the parties, in which the parties continued their shared legal rights and responsibilities, but agreed that plaintiff would have sole physical rights and responsibilities for the 1998-1999 school year. The order relieved plaintiff of her child support obligation, and provided that defendant would not pay child support for the next year in exchange for his not seeking an alleged child support arrearage. It affirmed all other provisions of the previous orders. During the rest of 1998 and most of 1999, the parties attempted to negotiate a final agreement to resolve plaintiff's June 1998 motion to modify parental rights and responsibilities. On December 1, 1999, the family court approved a negotiated agreement that purported to do so and issued the requested amended order. The agreement contains three substantive paragraphs that read as follows:

1. The final order dated June 30, 1994 in the above entitled matter shall be further amended only by striking in its entirety paragraph 2 of said order. Only Paragraphs 1, 6 and 7 of the stipulated modification order dated March 24, 1998 shall be vacated and of no further force and effect. The intent of the parties here is to amend the final order dated June 30, 1994 as amended to reflect the fact that the Defendant Gorden Seth Starkey is not the biological father of the parties' minor child based upon a DNA parentage test report dated March 9, 1998 and as a result as of the date of this stipulation, has no legal or physical rights and responsibilities with respect to the parties'[ ] minor child.

2. The stipulated temporary order dated September 1, 1998 shall be vacated in its entirety and of no further force and effect except that Plaintiff shall be entitled to claim the parties' minor child as a dependent for income tax purposes on her 1999 tax return and thereafter.

3. The issues of future child support, health insurance, college expenses, and maintenance of life insurance, are not waived by either party.

¶ 5. In December 2003, the child finished her first semester at the University of North Carolina Wilmington. In February 2004, plaintiff filed a motion to enforce the March 25, 1998 order. She made no mention of the December 1999 agreement. Plaintiff also sought a contempt citation against defendant for violating a court order by failing to pay 60% of the child's college expenses. Defendant opposed the motion to enforce, arguing that the 1999 agreement stripped him of all legal and physical rights and responsibilities, and therefore, he had no responsibility to pay. On June 9, 2004, Judge Keller ruled that the 1999 order was ambiguous, and he set the matter for a hearing to determine its meaning. The hearing took place over two days, November 17, 2004 and January 10, 2005, before Judge Joseph. On March 22, 2005, Judge Joseph ruled that the 1999 order was unambiguous. The family court found that the 1999 order struck only certain paragraphs of the previous agreement and left others in force. The court found that the college tuition paragraph was not stricken. Further, the family court interpreted the last paragraph of the 1999 order as specifically leaving open for dispute the issues of future child support, health insurance, college expenses, maintenance, and life insurance. Since neither party had moved to modify the March 1998 order regarding college expenses, the family court found that "the college expenses provision of the 1998 Amendment is still in effect and the defendant must pay 60% of [the child's] college expenses." The court also granted plaintiff interest and attorney's fees.

¶ 6. On appeal, defendant raises three issues. Defendant contends that the trial court erred in concluding that the 1999 order was unambiguous. Defendant also suggests that the trial court misconstrued the 1999 order, and finally, defendant argues that the trial court erred in enforcing the March 1998 order against him.

¶ 7. We first take up defendant's claim that the trial court erred in concluding that the 1999 order was unambiguous. The trial court reversed its earlier decision on this issue, stating that the "law of the case" doctrine is a discretionary rule of practice, not a rule of law, and a trial court has discretion to depart from the doctrine. State v. Malshuk, 2004 VT 54, ¶ 7, 177 Vt. 475, 857 A.2d 282 (mem.). The family court then determined that the last section of the 1999 order was not ambiguous when read as part of the whole agreement between the parties. The court read the 1999 order as a whole, considering it in light of the other provisions. The court particularly emphasized the passage that struck only paragraphs 1, 6, and 7 of the 1998 order:

The college expenses provision is found in paragraph 3 of the 1998 Amendment; it was not vacated or stricken by the 1999 Amendment. There are only three numbered paragraphs in the 1999 Amendment. Because the Amendment contains provisions which either vacate or strike provisions from previous orders, the defendant's argument that the third paragraph of the 1999 Amendment was intended to vacate the third paragraph of the 1998 Amendment is just not plausible. The 1999 Amendment merely states that issues concerning college expenses and other support items can be contested in the future. When considered in the context of the entire document, there is no ambiguity in the contested paragraph of the 1999 Amendment. That portion of the 1998 Amendment in which the defendant agreed to pay 60% of [the child's] college expenses is still in effect.

¶ 8. "We review de novo the trial court's determination as to whether the agreement is ambiguous, as well as its construction of the terms of the agreement." Downtown Barre Dev. v. C & S Wholesale Grocers, Inc., 2004 VT 47, ¶ 8, 177 Vt. 70, 857 A.2d 263. Ambiguity exists where the disputed language will allow more than one reasonable interpretation. Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988). In such cases, this Court may consider the circumstances surrounding the making of the agreement to ascertain the parties' true intent. Id. at 578, 556 A.2d at 84. While we may examine the surrounding circumstances to determine whether a provision of the agreement is ambiguous, this Court may not use those circumstances "to vary the terms of an unambiguous writing." Kipp v. Chips Estate, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999). "Where the terms of [an agreement] are plain and unambiguous, they will be given effect and enforced in accordance with their language." KPC Corp. v. Book Press, Inc., 161 Vt. 145, 150, 636 A.2d 325, 328 (1993).

¶ 9. In this case, the trial court correctly concluded that the final paragraph in the 1999 amended order was not ambiguous. The issues identified in that paragraph— future child support, health insurance, college expenses, and maintenance of life insurance—are discussed in paragraphs 2, 3, 4, and 5 of the 199...

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3 cases
  • Moreau v. Sylvester
    • United States
    • Vermont Supreme Court
    • April 4, 2014
    ...desertion or nonsupport are not presented here. 15 ¶ 32. Finally, defendant contends that the decisions in Titchenal and O'Connell–Starkey v. Starkey, 2007 VT 128, 183 Vt. 10, 944 A.2d 897, are inconsistent, allowing the state to force one unrelated person to financially support a child and......
  • McLaughlin v. Langrock Sperry & Wool, LLP
    • United States
    • U.S. District Court — District of Vermont
    • February 12, 2021
    ...more than one reasonable interpretation." Mueller v. Mueller, 2012 VT 59, ¶ 22, 192 Vt. 85, 94, 54 A.3d 168, 174 (quoting O'Connell-Starkey v. Starkey, 2007 VT 128, ¶ 8, 183 Vt. 10, 14, 944 A.2d 897, 901) (internal quotation marks omitted). If the contract language is ambiguous, "its interp......
  • Mueller v. Mueller
    • United States
    • Vermont Supreme Court
    • July 27, 2012
    ...the ambiguity ruling was correct. As we stated above, this ruling is one of law, and therefore our review is de novo. See O'Connell–Starkey v. Starkey, 2007 VT 128, ¶ 8, 183 Vt. 10, 944 A.2d 897. ¶ 22. “Ambiguity exists where the disputed language will allow more than one reasonable interpr......

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