Quenzer v. Quenzer, 49244

• Citation: 225 Kan. 83,587 P.2d 880
• Decision Date: 09 December 1978
• Docket Number: No. 49244,49244
• Parties: Anita J. QUENZER, Appellee, v. Lloyd L. QUENZER, Appellant.
• Court: Kansas Supreme Court

Page 880

587 P.2d 880

225 Kan. 83

Anita J. QUENZER, Appellee, v. Lloyd L. QUENZER, Appellant.

No. 49244.

Supreme Court of Kansas.

Dec. 9, 1978.

Syllabus by the Court

1. In a contract in writing ambiguity does not arise from total omission.

2. Where a contract in writing is silent or incomplete concerning a vital point incident thereto, parol evidence will be received to aid in its construction.

3. A vital point to a contract is one which should cover the rights of the parties in a factual situation that was likely to occur within the reasonable contemplation of the parties at the time the contract was executed.

4. In an action to construe an unambiguous property settlement agreement in which a husband is directed to pay a mortgage on real estate assigned to the wife, the fact a stranger to the agreement paid the mortgage could not have been reasonably contemplated by the parties. The right of each of the parties after payment of the mortgage by a stranger was not a vital point, as herein defined, and parol evidence is inadmissible.

Kenneth Clark, of Clark & Shelton, Hill City, argued the cause and was on the brief for the appellant.

Ivan D. Krug, LaCrosse, argued the cause and was on the brief for the appellee.

OWSLEY, Justice:

This is an action in which plaintiff Anita J. Quenzer seeks judicial interpretation of a clause in a property settlement agreement she contends is ambiguous. The trial court found the provision was ambiguous, admitted parol evidence to determine the original intent of the parties, and held for plaintiff. The Court of Appeals reversed the trial court in Quenzer v. Quenzer, 2 Kan.App.2d 345, 578 P.2d 1144 (1978), holding the trial court erred in finding the contract was ambiguous and in admitting parol evidence. We granted a petition for review.

Anita J. and Lloyd L. Quenzer were divorced on June 23, 1971, after having entered into a property settlement agreement which was incorporated by the court into the divorce decree. The agreement provides for custody and support of the parties' children, the establishment of a trust account for the education of the children, disposition of the real and personal property owned by the parties, and the payment of the balance of the purchase price and the remaining mortgage on the residence which was awarded to the wife free of any "right, title and interest" of the husband. It is this clause, directing the husband to pay the mortgage on the residence, which is in question. It provides:

"That Lloyd L. Quenzer hereby quitclaims, transfers and assigns all of his right, title and interest in and to the following real property situated in Ellis County, Kansas, to-wit:

"Lot Seven (7), and a portion of Lot Six (6), in Block Six (6), Prairie Acres Addition to the City of Hays, Kansas, to Anita J. Quenzer, subject only to those balances remaining due and payable to A. J. Breit and Pauline Breit, his wife, which the said Lloyd L. Quenzer agrees to pay and satisfy in full on or before October 1, 1971, under a real estate purchase contract; and to the mortgage in favor of the Hays Savings Association, which said installment payments on the same in the amount of $120.00 are to be assumed and paid by Lloyd L. Quenzer until said mortgage is fully satisfied."

Neither the property settlement nor the divorce decree provides for alimony to the plaintiff.

The defendant husband paid the balance of the purchase price to A. J. Breit and Pauline Breit as required by the property settlement. In addition, he made monthly installment payments of $120.00 to Hays Savings Association through September 19, 1975. On September 15, 1972, plaintiff executed a second mortgage on the home for $18,800 to the Hays National Bank. She defaulted and on October 15, 1974, the bank foreclosed the second mortgage. On December 3, 1975, the residence was sold to a third party purchaser who satisfied the first mortgage that day. On April 6, 1977, plaintiff filed a motion in district court requesting a judicial interpretation of the above- mentioned clause to compel defendant to pay $120.00 per month to her until the sum of $7,895.62, the balance of the mortgage still due and owing on the date of foreclosure, was paid in full.

The trial court found the clause ambiguous, admitted parol evidence to determine the intent of the parties, and held against defendant husband in the amount of $7,895.62 with 8% Interest from December 3, 1975. This judgment was later modified to the sum of $5,017.66 with interest at 61/2% From December 3, 1975, for reasons not important to this opinion. The Court of Appeals reversed, finding the contract unambiguous and holding for defendant. We affirm the decision of the Court of Appeals.

Plaintiff believes the language of the contract, "until said mortgage is fully satisfied," is ambiguous because it does not state who is to satisfy the mortgage. Whether ambiguity exists in an instrument is a matter of law to be decided by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). This court, however, may not rewrite a contract or make a new contract for the parties...