Schottel-Lehde v. Schottel

Decision Date21 May 2002
Docket NumberNo. WD 59764.,No. WD 58973.,WD 58973.,WD 59764.
Citation75 S.W.3d 359
PartiesLinda Lee SCHOTTEL-LEHDE, Appellant-Respondent, v. Lloyd Gene SCHOTTEL, Respondent-Appellant.
CourtMissouri Court of Appeals

Patrick M. Davis, Esq., Kansas City, for Appellant-Respondent.

E. Whitsitt, Esq., Westwood, KS, for Respondent-Appellant.

Before SMART, P.J., LOWENSTEIN and ELLIS, JJ.

HAROLD L. LOWENSTEIN, Judge.

Appellant, Linda Lee Schottel-Lehde (Mother), appeals from a judgment modifying child support. The thrust of Mother's appeal is that the trial court erred in failing to enforce a separation agreement provision, incorporated in the dissolution judgment, which she argues extended the obligation of cross-appellant, Lloyd Schottel (Father) to pay child support during up to ten semesters of college, in addition to higher-education expenses. The question hinges on sorting out the difference between the contractual obligation to pay child support and the statutory obligation to pay child support during the children's higher education. In addition to the issue of support, both Mother and Father appeal the portion of the judgment providing that each party pay their own attorney fees.

Factual and Procedural History

The parties separated in September of 1991, and in December of 1994, Wife filed a petition for dissolution of marriage. In August of 1995, the parties executed a property settlement and separation agreement (agreement), which was incorporated verbatim into the judgment of dissolution entered on October 4, 1995. The agreement included two separate provisions, one for child support and one for higher-education expenses for the couple's two children, Matthew Schottel, born September 17, 1976, and Brandi Lee Schottel, born February 18, 1979.

In paragraph five of the agreement, the non-custodial parent, Father, agreed to pay $558 per month in child support for both children collectively, the payments to terminate when the children "(e) Reach age Eighteen (18) or graduate from secondary school, whichever later occurs." In paragraph three (c) of the agreement, Father agreed to pay one-half of the cost of the children to attend college.1 Both children pursued higher education.

Father paid child support for the children up until March 1, 1999. In that same month, Father filed a motion to terminate child support, or, in the alternative, for support to be paid directly to the children. Father filed subsequent amended motions, culminating in a third amended motion filed April 17, 2000.

Father argued that based on the language of the agreement, he no longer had a child support obligation. Both children had attained the age of eighteen, had graduated from secondary school, and were enrolled in college. A question arose, however, whether Father had the obligation to continue to pay child support under § 452.340.5, RSMo 1994, which would extend the obligation beyond the time frame of the agreement. Section 452.340.5, as explained below, requires that child support be paid until the child reaches age twenty-two if enrolled in higher education. Matthew turned twenty-two on September 17, 1998, extinguishing Father's child support obligation under § 452.340.5 and under the written agreement. Brandi, however, would not turn twenty-two until February 18, 2001.

Father argued that pursuant to the agreement and § 452.340.5, the support for both children should terminate, or in the alternative, if his support obligation did not terminate, he should be entitled to pay his support obligation directly to the eligible child. Father also argued that if his support obligation had not ended, the support he was to pay should have been reduced by any amounts he had paid or would pay for the college education of each child.

Although not directly relevant to this appeal, in December of 1999, Mother filed a motion to modify the judgment of dissolution as it pertained to child support alleging continuing and changed circumstances, including: 1) Mother's remarriage to Michael Lehde in October of 1998; 2) the termination of her employment at Thomas McGee & Sons; 3) her relocation to Texas to live with her new husband; 4) her inability to secure comparable employment in Texas; 5) the fact that she had not sought to raise child support since the original order in 1995; and 6) husband's increase of salary since 1995.

A hearing was held on both the motions in June of 2000, and the judgment of modification here under review was issued the next month. The trial court found that: 1) paragraph five of the agreement concerning child support was clear and unambiguous; 2) Father voluntarily made child support payments to Mother through March of 1999, above and beyond any obligation he had under the agreement; 3) under § 452.340.5, Father's obligation for child support for Matthew ended on September 17, 1998, even though under the agreement it had ceased at the end of May of 1995; 4) under the agreement, the support for both children was combined in one lump sum; thus, when Matthew was emancipated September 17, 1998, it became necessary to recalculate and determine the proper amount of child support with respect to Brandi; 5) although the support obligation for Matthew ended September 17, 1998, the support obligation for Brandi could not be determined differently than $558 a month until March 12, 1999; 6) it was proper to adopt the Father's Form 14 showing an obligation to Brandi in child support for $297 per month and that such amount is unjust and inappropriate because she was twenty-one years of age, enrolled in college, did not spend the entire summer in either parent's residence, works during the summer, owns her own vehicle and has substantial savings; 7) the obligation of Father for child support should be decreased by the amounts by which he has paid college expenses; 8) Father should receive credit for the room and board that he provided Brandi in 1999 and 2000; 9) all future child support payments (which were now only $100 per month until February 18, 2001) would be paid directly to Brandi; 10) since neither party complained to the court about the performance of the other party under the college costs paragraph of the agreement, the court made no findings as to a breach of that portion of the agreement; 11) the motion of Father to terminate child support as to Matthew was granted; and 12) Mother and Father are to pay their own attorney's fees. Mother appeals and Father cross-appeals.

Mother asserts two points on appeal. First, she argues that the trial court erred in its judgment of modification in that it failed to enforce the contractual provisions of the agreement as it pertained to the payment of child support through ten semesters of college for each of the parties' minor children; and second, that the trial court erred in its judgment of modification in that it failed to enforce the contractual provisions of the agreement as it pertained to the payment of attorney's fees and costs. Father argues in his cross-appeal that he should have been awarded attorney's fees considering the financial condition of both parties and that Mother's claims were without merit and frivolous.

I.

Mother argues first that the trial court erred in its judgment of modification by failing to enforce the contractual provisions of the agreement in which Father agreed to pay child support for each of the parties' children through ten semesters of college and that the failure of the trial court to enforce the contractual provision of the agreement was not supported by substantial evidence, was against the weight of the evidence and erroneously declared or applied the law.

"The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or until it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong." Id.

The normal rules of contract construction apply to marital settlement agreements. Wood v. Wood, 2 S.W.3d 134, 138 (Mo.App.1999). Generally, the construction of a contract is a question of law. Id. "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." Daily v. Daily, 912 S.W.2d 110, 114 (Mo.App.1995). The words of the agreement are given their plain and ordinary meaning. Id. "A court will not resort to rules of contract construction to interpret a contract where the contract by its terms is unambiguous." Id.

The paragraph of the agreement at issue concerns child support. Paragraph five states, in pertinent part:

Subject to the further Order of the Court, non-custodial parent shall pay to custodial parent as and for support of the minor children of the parties, the sum of Five Hundred Fifty-Eight and 00/100 ($558.00) Dollars per month, the first payment being due on the 1st day of June, 1995, and on the first day of each consecutive month thereafter until further order of the Court. All such payments shall be made to the Clerk of the Circuit Court of Clay County, ... and child support payments shall terminate when the children:

a) Die;

b) Marry;

c) Enter Active Duty in the Military;

d) Become self-supporting, provided that the custodial parent has relinquished the child from parental control by express or implied consent;

e) Reach age Eighteen (18) or graduate from secondary school, whichever later occurs.

The trial court found that paragraph five of the agreement was clear and unambiguous. Quite plainly, the agreement as applied to these facts shows that Father's child support obligations terminated when the children turned eighteen years old or...

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    ...is against the weight of the evidence with caution and only if it firmly believes that the judgment is wrong. Schottel-Lehde v. Schottel, 75 S.W.3d 359, 363 (Mo.App. W.D. 2002). The term "weight of the evidence" means its weight in probative value, not the quantity or amount of evidence. Wa......
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