Hughes v. Hughes

• Decision Date: 20 June 2000
• Citation: 23 S.W.3d 838
• Parties: (Mo.App. W.D. 2000) Dixie D. Hughes, Respondent, v. Donald J. Hughes, Appellant. WD57075 and WD57302 0
• Court: Missouri Court of Appeals

23 S.W.3d 838 (Mo.App. W.D. 2000)

Dixie D. Hughes, Respondent, v. Donald J. Hughes, Appellant.

WD57075 and WD57302

Missouri Court of Appeals Western District

06/20/2000

Appeal From: Circuit Court of Andrew County, Hon. Patrick K. Robb

Counsel for Appellant: Craig D. Ritchie

Counsel for Respondent: Robert B. Randolph

Opinion Summary: Donald J. Hughes appeals the denial of his motion to terminate maintenance on the basis that, inter alia, Wife had become employed subsequent to the dissolution and that therefore Husband was entitled to termination of maintenance. Hughes appeals the motion court's ruling that "[t]he work performed by [Wife] was not employment and does not trigger the termination of her maintenance award." Husband also appeals the award of $4,000.00 in attorney's fees to Wife for fees and expenses

Affirmed.

Held: Although it made no specific finding of ambiguity, the motion court clearly found the word "employment" ambiguous, going on a search outside of the decree for the meaning of the word, not only asking the parties what they meant by the term, but going on to examine the record of the dissolution court. Because the record shows clearly in this case that the dissolution court understood that the word "employment" was a reference to full-time employment, or at least substantial regular employment which would take the place of the maintenance, we cannot say that the motion court erred in this determination.

In considering the motion for attorney's fees, because the motion court heard evidence related to each party's financial condition and the court also considered an affidavit prepared by Wife's counsel estimating the legal fees to be incurred in the proceedings and found the estimated fees to be reasonable, we cannot say that the motion court abused its discretion in the award of attorney's fees on appeal.

Dissenting opinion summary by Judge Harold L. Lowenstein:

Lowenstein, J., filed a dissent based on the majority's analysis of the maintenance issue. The dissenting judge wrote there was no finding by the trial court that the word "employment" was ambiguous. Absent such a finding, extrinsic evidence should not have been used in interpreting the separation agreement. Lowenstein contended the word "employment" was unambiguous and, by its plain and ordinary meaning, included part and full-time employment. Lowenstein dissented for a reversal of the trial court's judgment and termination of maintenance.

James M. Smart, Jr., Judge

This case involves issues related to interpretation of a separation agreement incorporated into a dissolution decree. Donald J. Hughes appeals the denial of his motion to terminate maintenance. We affirm.The marriage of the parties was dissolved in 1998 after a thirty-five year marriage. Incorporated into the judgment was the oral separation agreement of the parties as to spousal maintenance. Paragraph two of the dissolution decree stated as follows:

2. [Husband] shall pay to [Wife] periodic spousal maintenance in the amount of $1,000.00 per month, payable to the Circuit Clerk of Andrew County as trustee, commencing on the 10th day of March, 1998. This maintenance order is non-modifiable and is to terminate upon the first of the following:

(a) Remarriage of [Wife];

(b) The co-habitation of [Wife] with a member of the opposite sex;

(c) The employment of [Wife];

(d) The death of either party;

(e) May 10, 2001.

Thus, the separation agreement provided for thirty-eight months of spousal maintenance in the amount of $1,000.00 per month, non-modifiable, subject to termination upon Wife's remarriage, Wife's co-habitation, Wife's employment, or the death of either party. The dissolution court found the agreement not to be unconscionable and adopted it in the court's decree.

On October 23, 1998, seven months after the dissolution, Husband filed a motion to terminate maintenance, contending, inter alia, that Wife had become employed subsequent to the dissolution and that therefore Husband was entitled to termination of maintenance.

At the hearing on January 27, 1999, Husband presented evidence that Wife had been engaged in part-time work for Gary Kunkel, a farmer who rented some acreage from Wife, in the fall of 1998, for a period of five weeks. She drove a tractor and truck in assisting him with harvesting his crops. Wife testified she worked a total of one hundred forty hours over the five weeks at the rate of $6.00 per hour, receiving a total income of $840.00.

Wife testified that the reason she accepted the temporary employment, in spite of her fibromyalgia, was that her financial circumstances became desperate because Husband refused to sign documents to divide a $20,000.00 bank account in accordance with his duty under the dissolution decree. She testified that Husband finally signed the documents only after being served with a motion for contempt and notice of a hearing on that motion. Wife testified that she stopped working for Mr. Kunkel immediately after receiving the money to which she was entitled under the decree. Wife also testified that, due to her condition of fibromyalgia, she was regularly in pain while working for Mr. Kunkel.

Husband contended that he was entitled to terminate maintenance because the term "employment" in the separation agreement should be considered to mean literally any employment of any kind. Wife argued to the court that, in the context of the circumstances of the separation agreement, the word "employment" contemplated regular, full-time employment, or at least substantial employment. The motion court was uncertain as to the meaning of the word "employment" in this context and accordingly asked the parties what they had understood by the term. The court also searched the record of the dissolution proceeding for evidence of what the dissolution court thought in connection with its consideration of the agreement for purposes of conscionability pursuant to section 452.325 RSMo 1994.

The court noted that "employment" was not defined in the dissolution court's judgment. The court also noted that Wife had taken on the part-time work only because the Husband had refused to divide the bank account as the dissolution decree had required. The court also considered the fact that the record of the dissolution indicated that the separation agreement was negotiated as part of a property settlement agreement between the parties, and that the dissolution court had mentioned that Wife was at that time "not capable of full-time employment." The motion court indicated that the statement of the dissolution court in discussing the agreement supported the claim of Wife that the employment contemplated was to be full-time. The court then found that "[t]he work performed by [Wife] was not employment and does not trigger the termination of her maintenance award."

Husband appeals the ruling of the motion court in his motion to terminate maintenance. Husband also appeals the award of $4,000.00 in attorney's fees to Wife for fees and expenses on appeal.

Standard of Review

The standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This court will affirm the judgment of the motion court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32.

Discussion

Husband contends that it was error for the motion court to deny his motion to terminate maintenance because the court erroneously applied the law by failing to use the plain and ordinary meaning of the term "employment." He also contends there was no substantial evidence to support the court's judgment because Wife was employed. Because of the overlap in these two points, they are considered together.

In interpreting a separation agreement incorporated into a decree, the "normal rules of contract construction apply. . . . " Daily v. Daily, 912 S.W.2d 110, 114 (Mo. App. 1995) (citing Blackman v. Blackman, 767 S.W.2d 54, 59 (Mo. App. 1989)). "When the language of a provision is in dispute, the court must determine the parties' intent as manifested in the document itself and not by what the parties say they intended." Id. This is done by giving the words of the agreement their plain and ordinary meaning as understood by a reasonable and average person. Id. It is only when the language of the decree is ambiguous that a court may determine the interpretation of the settlement agreement by reference to evidence beyond the face of the decree itself. Bolton v. Bolton, 950 S.W.2d 268, 271 (Mo. App. 1987).

Husband argues that the word employment was not ambiguous and that the court was not entitled to consider factors extrinsic to the decree itself in interpreting the decree. We disagree.

This case involved an oral separation agreement incorporated into the decree. The parties may have been less careful than usual to insert descriptive modifiers before the word "employment" such as "substantial" or "regular" or "full-time." In any event, in this context, the word "employment" was ambiguous. A provision which is not ambiguous in one context may be ambiguous in another. Hocker Oil Co., Inc. v. Barker-Phillips-Jackson, Inc., 997 S.W.2d 510, 516 (Mo. App. 1999) (noting that cases interpreting the same language in a different context are "not particularly helpful.") Taken in its broadest sense, the word "employment" is extremely broad -- so broad as to lead to some rather absurd applications in this context. Did the parties mean that babysitting, or trips to the farmer's market to sell garden produce, or engagement in a temporary, part-time endeavor, would terminate maintenance? That is certainly not clear, especially in the context of a negotiated thirty-eight month non-modifiable spousal maintenance provision which resulted from property division negotiations. Although the motion court made no specific finding of ambiguity, the court clearly found the word...