Weddington v. Weddington

• Decision Date: 22 January 2004
• Docket Number: No. 23,800.,23,800.
• Citation: 135 N.M. 198,2004 NMCA 34,86 P.3d 623
• Parties: Kenneth L. WEDDINGTON, Petitioner-Appellee, v. Anna N. WEDDINGTON, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

86 P.3d 623

135 N.M. 198

2004 NMCA 34

Kenneth L. WEDDINGTON, Petitioner-Appellee, v. Anna N. WEDDINGTON, Respondent-Appellant.

No. 23,800.

Court of Appeals of New Mexico.

January 22, 2004.

As Revised April 16, 2004.

Thomas C. Bird, Elizabeth E. Whitefield, Keleher & McLeod, P.A., Albuquerque, NM, for Appellee.

Jody Neal-Post, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} In this domestic relations feud, Anna Weddington (Mother) appeals from an order determining the amount to be deposited into a college fund account and awarding Kenneth Weddington (Father) a portion of his attorney fees and costs. Mother contends that the district court did not have jurisdiction to make any determination regarding the college fund account and, even if it did, it erred in interpreting and reforming the plain language in the marital settlement agreement regarding the account. She also contends that the district court abused its discretion in awarding Father a portion of his attorney fees and costs as a sanction against her for the motions she filed leading up to the order from which she appeals. We affirm.

BACKGROUND

{2} Mother and Father were married in 1983. In 1998 Father filed a petition for divorce. The parties have three children. In their marital settlement agreement (the agreement), the parties agreed to a division of their community property and debts, and agreed on their separate property, child support, a parenting plan for the children, and spousal support. The parties agreed that child support would be reviewed and re-set in 2003, but until that time it would "not be modified unless there [was] a substantial change in the time-sharing arrangement." In addition, the agreement stated:

This agreement regarding the non-modifiability of child support was reached by the parties who considered it an integral portion of the overall settlement and with the knowledge that either or both parties may earn or receive more or less money than shown on the Child Support Worksheets during the period of non-modifiability.

There was also a provision for the modification of child support upon the emancipation of each child.

{3} The parties agreed to the division of Father's Voluntary Separation Incentive (VSI) payments from the military. The amounts that Mother received from the VSI payments were designated as spousal support. In 2000 Mother would receive a lump sum payment of $5,000. In 2001 she would again receive a lump sum payment of $5,000. In 2002 Mother would receive $3,500 in a lump sum payment. Father was awarded the remainder of the VSI payments in 2000-2002 as his separate property. Beginning in 2003, until VSI payments ceased in 2020, Mother would receive $3,500 annually in a lump sum payment as spousal support and "[t]he remainder of the VSI payment [would] go into a custodial college fund account which [would] be established in the name of [Father] and the parties' children." The parties agreed that the account would be used to pay expenses for the children's college education.

{4} The agreement was made a part of the court's final order of divorce in June 1999. In February 2002, Mother filed a petition to enforce the agreement and to modify child support. Mother argued that the oldest child would soon graduate from high school and that the college account needed to be established. Further, Mother argued in her petition that because the oldest child was near emancipation, child support should be modified. Father moved to dismiss Mother's petition and responded that there was no provision for funding the college account until 2003 and that there was to be no change in child support until 2003. Mother responded to Father's motion to dismiss and asserted that Father was using the college account to control where the oldest child would attend college. She asserted she did not want the account funded, but wanted only the details of the account to be established. Further, she contended that Father had had a substantial increase in his salary and that the original child support negotiations had been made in bad faith. Finally, she asserted Father was not taking responsibility for one-half of the children's expenses. Mother also filed a motion for a restraining order or alternatively for physical custody of the children. She claimed Father was upsetting and intimidating the children.

{5} Father filed a reply to Mother's reply to his motion to dismiss in which he pointed out that when the college account was funded, it would receive between $4,000 and $7,000, depending on taxes. He asserted Mother was encouraging the oldest child to apply to a college whose expenses far exceeded the funds being put into the account. He pointed out there were two other children entitled to receive monies from the account in the future. He also pointed out that the parties agreed to the child support arrangement knowing that his income might increase. Finally, he argued that Mother was attempting to modify child support in bad faith and renewed his motion to dismiss Mother's petition. He also sought an award of attorney fees and costs.

{6} The district court conducted a hearing on Mother's petition to enforce the agreement and to modify child support. Father argued his motion to dismiss on the basis that the agreement was explicit about the funding of the college account and that there was to be no modification to child support until 2003. The court determined that it did not have jurisdiction to change the parties' agreement and granted Father's motion to dismiss with regard to the college account. The court also denied the motion to change the custody arrangements.

{7} In the hearing, the district court stated that, although child support could be modified, in a case such as this, where the parties agreed not to modify child support for a particular period of time, the court would give that fact great weight. At the same time, however, the court decided that the parties should exchange financial information and that a ruling on modification of child support would be reserved pending that exchange. The court wanted the parties to see what effect the exchanged information would have on the child support. The court stated that Mother should decide whether or not to proceed based on what the information revealed. If she did not request a hearing on the child support modification within thirty days, modification would be denied. Thirty days later, Mother requested a hearing on her motion to modify child support.

{8} At the hearing on Mother's motion to modify child support, Mother was prepared to present evidence that Father was not living up to the parties' agreement to a 50/50 time share. The district court determined, however, that what Mother intended to show was not a substantial material change of circumstances and that Mother would have to show the court "why it is totally inequitable for the parties to follow the agreement." Mother then acknowledged that Father met his 50/50 time share responsibility, but proceeded to argue that Father was not carrying his share of expenses and responsibilities for the children. There was a great deal of discussion about providing food and clothing and paying for other expenses on a 50/50 basis. The court suggested that the parties get together with their counsel and work the problems out because the court did not see a basis for modifying the child support. Thereafter, a stipulated order was entered, in which Mother dismissed her motion to modify child support with prejudice until February 1, 2003. Father's request for attorney fees and costs was reserved until the next hearing.

{9} Mother filed an objection with affidavits with regard to the amount of attorney fees and costs requested by Father on the basis that the fees were unreasonable. Further, she asserted that she was carrying the majority of the children's financial burden and that an award of attorney fees to Father would be detrimental to the children. Father responded that the fees requested were reasonable in light of the proceedings. Further, he pointed out that Mother's motions were all dismissed as inappropriately filed. At the hearing on Father's request for attorney fees and Mother's objection, the district court noted that the motions filed by Mother were in clear derogation of the parties' agreement. As a result, the court determined that it would assess fees against Mother.

{10} The court went on to express its concern with the dynamics between the parties and their children. The court noted that the parties were using money against one another and placing the children in the middle. The court decided to appoint a guardian ad litem for the children. The guardian was to meet with both parties and the children to look at budgets and help them see the realities of what they have to spend and what the children can realistically expect. The court determined that $2,000 would be a reasonable attorney fee and ordered Mother to pay it as Father's share of the initial guardian ad litem fee. The remainder of the hearing was taken with Mother expressing her unhappiness with the proceedings and her continuing view that Father was not sharing everything 50/50 and she was carrying the financial burden of the children. The court pointed out to Mother that she had an incorrect understanding of what 50/50 meant. The court expressed its hope that the guardian ad litem would be able to assist the parties in making financial decisions that were more realistic than those they had been making.

{11} The district court requested Father's counsel to draft the order reflecting the court's decision. A presentment hearing was required because Mother would not approve the order as drafted. Mother argued that she had a problem with the language regarding the taxation of the VSI. The court explained its intent regarding the taxes and the amount to be deposited in the college account. Mother then argued that they had never agreed that...