In re Williamson
| Decision Date | 23 December 2016 |
| Docket Number | No. 115,518,115,518 |
| Parties | In the Matter of the Marriage of: Marcia Williamson, Appellee, and John Williamson, Appellant. |
| Court | Kansas Court of Appeals |
Robert E. Myers, of Columbus, for appellant.
No appearance by appellee.
Before Bruns, P.J., Green, J., and William S. Woolley, District Judge, assigned.
John Williamson entered into a divorce property settlement agreement with Marcia Williamson, part of which included an agreement to pay an equal share of college expenses for the two children of the marriage. John appeals the district court's holding that the court did not have jurisdiction to modify the education expense agreement after one of the children had turned 18. In addition, John contends that the district court should have determined that the education expense agreement was unconscionable and ambiguous and, therefore, the district court should have held that the education expense agreement was unenforceable.
The district court correctly determined that the court did not have jurisdiction to modify the education expense agreement after the child reached the age of majority. The issue of the agreement's enforceability was not raised in John's motion to modify. Thus, we affirm.
On May 25, 2012, John and Marcia were divorced, reserving the issues such as child support and parenting time for a later date. On July 31, 2012, the parties entered a property settlement agreement which was approved by the court and incorporated into the divorce decree. The relevant provision of the property settlement agreement is as follows:
More than 2 years later, in November 2014, Marcia filed a motion for contempt in the divorce case alleging that John had failed to pay his share of the college expenses for one of the children. Their son was 19 and had to withdraw from the University of Kansas for health reasons. As a result, their son was required to reimburse the university for a Pell Grant. Marcia sought to hold John in contempt for John's failure to pay his share to the university, $715.50 plus a $200 late fee. John responded with a motion to modify sharing of expenses, alleging a material change in circumstances. John's stated reasons in the motion were that he could no longer agree to share the college expenses due to a material change of circumstances related to John's financial resources.
The district court held a hearing on May 26, 2015, on John's motion to modify sharing of expenses. John testified at the hearing that at the time he had agreed to the property settlement agreement, he had expected his son to receive a "full ride" scholarship at a top college. John thought the amount he would have to pay pursuant to the agreement would be minimal. In addition, John did not anticipate he would have to pay for college expenses if a child dropped out of college, which was the case with his son. Finally, John testified that his income was greater now than when he signed the agreement.
At the May 26, 2015, hearing on John's motion to modify, the district court commented about a July 31, 2012, hearing at which the court approved the property settlement agreement. In its comments, the court recalled that there was testimony presented at the motion to approve the July 31, 2012, property settlement agreement. However, the district court judge, in his ruling on John's motion to modify, noted that in looking back at the hearing to approve the settlement agreement, the agreement could be read to mean that it provided that John might have to pay his share of tuition for Harvard or MIT and that there is a big difference between tuition at Harvard, MIT, and Kansas state universities. Because of this, the district court commented that the court probably should not have approved the agreement because it was too open-ended. The court further commented that in July 2012, it would have found that that it was not reasonable and not fair.
However, the district court denied John's motion to modify due to lack of jurisdiction, citing Morrison v. Morrison , 14 Kan. App. 2d 56, 60–61, 781 P.2d 745 (1989) ().
On October 9, 2015, the district court held a hearing on Marcia's contempt motion. In its opinion denying the motion for contempt, the court stated: "However, the Court finds that there was enough confusion regarding the educational expenses and who owed who what, and construing the issue of contempt strictly against [Marcia], this Court cannot conclude that [John's] failure to pay the above-referenced indebtedness was deliberate and willful, and the Court finds, therefore, that [John] is not in indirect contempt."
Jurisdiction to modify an agreement to provide for a child's post-majority education expenses
On appeal, John contends that the district court erred when the court held that the district court does not have jurisdiction, after a child attains the age of 18, to modify an open-ended agreement that provides for payment of all college, university, or post high school education expenses.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Fuller v. State , 303 Kan. 478, 492, 363 P.3d 373 (2015).
In this case, the district court denied the motion to modify, citing Morrison , 14 Kan. App. 2d 56. In Morrison , the father agreed in a child support order with the mother to pay $250 a month for each of their children until the children reached the age of 22, as long as the children were "pursuing a formal education at a full-time accredited educational institution." 14 Kan. App. 2d at 56. The mother requested an increase in child support for the youngest child, who was 18 years old but had not yet completed her junior year of high school.
This court held that under K.S.A. 1988 Supp. 60–1610(a)(1), "where the child support obligations of a parent are extended past the age of majority by an agreement incorporated into the decree of divorce, the district court has no jurisdiction to modify the periodic support payments after the child has attained the age of 18." 14 Kan. App. 2d at 60–61. The Morrison court was construing K.S.A. 1988 Supp. 60–1610, which is now codified without substantial modification at K.S.A. 2015 Supp. 23–3001. 14 Kan. App. 2d at 57. The court in Morrison was considering a motion to modify periodic child support payments, while in this case, we are considering a motion to modify an agreement for education expenses. In both cases, the motion to modify was made after the child turned 18.
John contends that there is a distinction in the statute between child support and education expenses for purposes of a motion to modify. He argues that child support is established by periodic payments, whereas the educational expenses could involve both periodic payments, such as rent, and nonperiodic payments such as tuition, dormitory, books, and fees. John further argues that the language of K.S.A. 2015 Supp. 23–3001(b)(1) only provides for an agreement to pay "support" beyond the age of 18. John argues "support" must mean "child support" and does not include "education expenses." If so, he contends that the statute does not limit a modification of an education expense agreement when a child reaches majority. As such, John contends that under K.S.A. 2015 Supp. 23–3001, the court has jurisdiction to modify an education expense agreement after a child reaches majority.
The issue is a matter of statutory interpretation. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. Cady v. Schroll , 298 Kan. 731, 738, 317 P.3d 90 (2014). The legal effect of a written instrument and the consideration of statutory provisions present questions of law that are subject to unlimited review by this court. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 486, 15 P.3d 338 (2000) ; Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
K.S.A. 2015 Supp. 23–3001(a) provides: "In any action under article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, the court shall make provisions for the support and education of the minor children." (Emphasis added.) K.S.A. 2015 Supp. 23–3001(b)(1) further provides:
The legislature chose to use the terms "support," "education," and "child support" distinctly. It is presumed that the legislature intended a different meaning when it used different language in the same connection within a statute. Boatright v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). The language of the statute is clear: (1) Unless otherwise provided by statute, support shall terminate when a child reaches 18 years of age, and (2) parents may agree, in writing, to pay support beyond the time the child reaches 18. If the legislature had intended the term "support" in this section to mean...
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