Kirchner v. Kirchner
| Decision Date | 02 April 1971 |
| Citation | 465 S.W.2d 299 |
| Parties | Walter A. KIRCHNER, Appellant, v. Jacquelyn C. KIRCHNER, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Garland R. Hubbard, Louisville, for appellant.
Sidney Hanish, Louisville, for appellee.
This is a proceeding by the mother of minor children against the father for alleged arrearages in child support payments and for counsel fees. Both parties appeal from the chancellor's judgment.
Mrs. Kirchner was granted a divorce from Dr. Kirchner on April 23, 1959. A settlement agreement dated April 10, 1959, was made a part of the judgment. Among other things, it gave custody of four infant daughters to the mother and provided that Dr. Kirchner would pay her $700 per month as alimony until her death or remarriage. Actually these payments covered both alimony and child support but were called alimony so that Dr. Kirchner could take them as income tax deductions and Mrs. Kirchner could claim exemptions for the children.
The settlement agreement made no provision for support of the children in event of Mrs. Kirchner's remarriage, nor did it call for a reduction in the monthly payments as the children reach maturity. However, the parties thereafter signed two supplemental agreements, which were as follows:
1. An instrument dated April 11, 1959, providing 'that in the event of the wife's death, the husband shall pay the sum of $150.00 per month to each of the then surviving minor children for their maintenance, comfort and support.'
2. An instrument dated August 5, 1959, which was otherwise identical to the April 11 supplement except that the words 'remarriage or death' were substituted for the word 'death.'
Neither of the supplemental agreements was made a part of the record or given judicial sanction at the time of its execution.
Mrs. Kirchner remarried on May 12, 1966. Meanwhile, in s964, she instituted proceedings against Dr. Kirchner for unpaid alimony in the sum of $4,150 and he moved for a reduction in the monthly amount payable under the settlement agreement. The latter motion was never acted upon. Mrs. Kirchner eventually got a judgment for her $4,150 and Dr. Kirchner satisfied it. While this controversy was in process the parties came to an agreement permitting Dr. Kirchner to reduce the alimony payments to $550 per month during the last six months of 1964 and $600 per month for the year 1965, with the understanding that he would resume payment of $700 per month at the beginning of 1966.
This arrangement for a temporary reduction in the amount of alimony payments was made without any written agreement as to whether Dr. Kirchner would still owe, and therefore have to pay at some future time, the difference of $2,100 between the reduced payments actually made and the $700 per month payable under the terms of the settlement agreement. Mrs. Kirchner maintains that there was no agreement to forgive the difference and that it is now payable. The truth may be that this issue was left in limbo and that the parties really did not reach a meeting of the minds. However, citing the fact that between 1966 and 1969 Mrs. Kirchner made numerous motions for child support without mention of this $2,100 now alleged to have been due and unpaid all during that period, the chancellor found as a fact that the parties expressly agreed to reduce the alimony due in 1964 and 1965. Whether it was express or was fairly inferable from the circumstances, that such an understanding existed is a factual conclusion we are not disposed to hold clearly erroneous. Cf. Reid v. Reid, Ky., 300 S.W.2d 225 (1957).
For more than a year following Mrs. Kirchner's remarriage Dr. Kirchner made payments to her on the basis of $150 per month for each of the three daughters then under the age of 18. He discontinued them after July of 1967 and made no further payments until Mrs. Kirchner began the current phase of this proceeding in 1969. The issues now are whether (1) Dr....
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