In re Marriage of Vandervoort

• Decision Date: 23 May 2008
• Docket Number: No. 98,584.,98,584.
• Citation: 185 P.3d 289
• Parties: In the Matter of the MARRIAGE OF Rhonda D. VANDERVOORT, Appellant, and Dirk Vandervoort, Jr., Appellee.
• Court: Kansas Court of Appeals

185 P.3d 289

In the Matter of the MARRIAGE OF Rhonda D. VANDERVOORT, Appellant, and Dirk Vandervoort, Jr., Appellee.

No. 98,584.

Court of Appeals of Kansas.

May 23, 2008.

J. Steven Schweiker, of Overland Park, for appellant.

Dirk VanderVoort, Jr., appellee pro se.

Before HILL, P.J., GREEN and STANDRIDGE, JJ.

HILL, P.J.

This appeal raises a question about the district court's interpretation of a separation agreement. At their divorce, Rhonda and Dirk VanderVoort agreed that her child support payments to Dirk would equal Dirk's maintenance payments to Rhonda, so no money would change hands. But when it comes to child support, Kansas courts are not bound by private agreements. Child support cannot be lowered or ended by agreement of only the parents. The ending of Dirk's maintenance debt because of Rhonda's remarriage does not erase her duty to pay child support. Because child support belongs to the children, we hold the district court's interpretation of the separation agreement is correct and Rhonda must pay. We differ with the court's calculation of the arrearage, though. Our Supreme Court has ruled that a child support order automatically ends when a child arrives at the age of 18. Because two of their four children were 18 before Rhonda married again, we hold the court must recalculate the arrearage.

Contract clauses show "offsetting" terms for maintenance and child support.

Rhonda and Dirk were married in 1982, and divorced on May 2, 2001. The parties have four children: Jeremy, born December 23, 1982; Gerrit, born February 24, 1986; Austin, born August 7, 1990; and Kendyl, born January 14, 1995. At the time of the divorce, Jeremy was 18 and enrolled in high school. The separation agreement contained separate clauses on maintenance and child support. We list them.

Maintenance

"The husband shall pay, or be responsible for paying, spousal maintenance to the wife as and for her support in the exact amount that the wife is ordered, and will at any time be ordered, to pay husband as or for child support regarding their children for seven (7) years. Accordingly, the parties agree that husband's spousal maintenance obligation to wife shall always equal any child support obligation that wife may have to husband, and the Court retains jurisdiction to change the amount of maintenance to always be equal to the child support in this matter for seven (7) years. Furthermore, as the husband's spousal maintenance obligation is, and shall be, equal to wife's child support obligation for seven (7) years, neither party shall be obligated to pay any amount of money to the other, and therefore there shall not be an income withholding order in this case. Although spousal maintenance shall be offset against the child support obligation, the parties agree that said sum would otherwise be $611.00 per month and the parties intend that there shall be a spousal maintenance tax deduction in favor of husband and a tax obligation to wife consistent with a $611.00 per month spousal maintenance payment from husband to wife for seven (7) years commencing April 1, 2001. Furthermore, the husband's maintenance obligation shall cease upon the death of either party, the remarriage of wife or wife's cohabitation with a[n] unmarried male in a marriage-like state as defined by Kansas law."

Child Support

"As set forth in Section III, wife's obligation to pay chid support to husband shall be equal to husband's obligation to pay maintenance to wife. Therefore neither party shall be obligated to pay any amount of money to the other, and therefore there shall not be an income withholding order. The child support obligation of the wife would otherwise be $611.00 per month but again, is not owed by either party, and would cease in any event upon the occurrence of any one of the following events:

i. the death of either party;

ii. the death of the child;

iii. the child attaining the age of 18 years, unless: (A) the parent or parents agree, by written agreement approved by the court to pay support beyond the time the child reaches 18 years of age; or (B) the child reaches 18 years of age before completing the child's high school education in which case the support shall not terminate automatically, unless otherwise ordered by the court, until June 30 of the school year during which the child became 18 years of age if the child is still attending high school; or (C) the child is still a bona fide high school student after June 30 of the school year during which the child became 18 years of age, in which case the court, on motion, may order support to continue through the school year during which the child becomes 19 years of age so long as the child is a bona fide high school student and the parents jointly participated or knowingly acquiesced in the decision which delayed the child's completion of high school;

iv. the valid marriage of the child;

v. the lawful entry of the child into the military services of the United States."

Rhonda married in January 2005, but Dirk did not know that until sometime in 2006. Once he learned of the marriage, Dirk responded by filing, in September 2006, a motion "to establish child support arrears created by termination of maintenance." The court issued an agreed order that Dirk's maintenance abated on February 1, 2005. Finally in December 2006, the district court ruled Rhonda should have paid Dirk $611 per month in child support for the 14 months from February 2005 through April 2006. This amounted to $8,554.

Rhonda argues the separation agreement contained in the divorce decree is clear and unambiguous, and the district court erred by changing the agreement to create child support and maintenance duties independent of one another. Dirk, in his pro se brief, argues the district court correctly interpreted the separation agreement to contain separate clauses and determined that Rhonda's remarriage affected maintenance only.

The district court's interpretation of the agreement is sound.

This question is a matter of law. "The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]" Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).

This agreement is inconsistent. In the paragraph outlining Dirk's maintenance obligation, the agreement states: "[T]he husband's maintenance obligation shall cease upon the death of either party, the remarriage of wife or wife's cohabitation with a[n] unmarried male in a marriage-like state as defined by Kansas law." But there is no additional provision stating that once Rhonda remarries, her child support obligation will also cease. In the paragraph outlining Rhonda's child support obligation, the agreement provides for the automatic termination of child support by occurrences other than Rhonda's remarriage. The agreement states that Rhonda's child support would terminate upon the death of either party, the death of the child, the child attaining 18 years of age, the valid marriage of the child, or the entry of the child into the military. Again, there is no additional provision in the child support paragraph stating that, upon these occurrences, Dirk's maintenance obligation will also cease. Clearly, even though the agreement states the two obligations offset one another, the agreement contains different provisions that only apply to one or the other. Inconsistency means ambiguity, and we therefore look further.

We think the district court's interpretation is sound when one considers the way the two obligations are treated under Kansas law. While Kansas law allows parties to agree upon terms for maintenance and limits the jurisdiction of courts to modify such terms, provisions in settlement agreements regarding child support "shall be subject to the control of the court." K.S.A. 60-1610(b)(3). Child support is a right belonging to the child and cannot be reduced or terminated by agreement between parents. In re Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000). Even when courts make deviations from the recommended amounts in the Kansas Child Support Guidelines (Guidelines), courts must show that such deviations serve the best interests of the children. In re Marriage of Aubuchon, 22 Kan.App.2d 181, 182, 913 P.2d 221 (1996).

Further, the district court was correct in its interpretation that Rhonda's remarriage terminated only Dirk's maintenance obligation and not Rhonda's child support obligation because parties cannot contractually reduce or terminate child support and cannot divest courts of the power to maintain jurisdiction over the custody, child support, and education of minor children. Thompson v. Thompson, 205 Kan. 630, 633, 470 P.2d 787 (1970); Carey v. Carey, 9 Kan.App.2d 779, 781, 689 P.2d 917 (1984).

We fail to understand Rhonda's argument that the district court's interpretation in some way violates K.S.A. 60-1610(b)(3), which says issues contained in an agreement and incorporated in a decree, "other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties." It is obvious that this matter concerns the support of the minor children, and the court can ignore any contract provision that would illegally terminate child support.

We find no error here.

Child support...