Gayle L. Saulsberry Jones v. Daryle B. Saulsberry

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

GAYLE L. SAULSBERRY JONES

APPELLANT

V.

DARYLE B. SAULSBERRY

APPELLEE

CA00-359

December 20, 2000

APPEAL FROM THE CONWAY COUNTY CHANCERY COURT

[NO. E-90-216 DIV. 1]

HON. VAN TAYLOR,

CHANCELLOR

REVERSED AND REMANDED

This is a chancery case involving child support and the provisions of a property settlement agreement incorporated into the parties' divorce decree. By an independent property settlement agreement incorporated into the decree, appellant renounced almost all her interest in a considerable accumulation of marital property, and the decree required appellee to pay for specific anticipated college expenses of their two children after they graduated from high school. Seven years after the divorce, appellee's child-support obligation was increased by court order in light of his increased income and the child support chart. When the first child began college, appellee unilaterally reduced his child support payment to one-half of the previous amount. However, the presumptive amount of support owed for one child under the child support chart is substantially more than half of that owedfor two children. Appellant was unable to resolve the situation and moved that appellee be cited for contempt. The chancellor refused, holding that the amount paid by appellee towards the eldest child's college expenses constituted a payment of "child support" for which appellee should be credited. Appellant argues that the chancellor erred as a matter of law in so interpreting the agreement and the decree. We agree, and we reverse and remand.

We note that the chancellor always retains jurisdiction and authority over child support as a matter of public policy and, no matter what an independent contract states, either party has the right to request modification of a child-support award. Frigon v. Frigon, 66 Ark. App. 343, 989 S.W.2d 931 (1999). However, the question in the present case does not involve the amount of the child support award, but instead requires us to decide whether the provision in the decree requiring appellee to pay college expenses should be regarded as child support so that appellee would be entitled to count those payments as part of the amount of child support previously ordered by the chancellor. When parties execute an independent property-settlement agreement that is incorporated into a decree of divorce, it cannot subsequently be modified by the court. Houston v. Houston, 67 Ark. App. 286, 999 S.W.2d 204 (1999). When a contract is unambiguous, its construction is a question of law for the court. A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996). On appeal, a chancellor's

conclusion of law is not given any deference; our review is de novo. Houston v. Houston, supra. These same basic principles apply to the interpretation of judgments. Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991).

On de novo review, we conclude that there is no ambiguity in the language of the agreement or of the decree. The "child support" and "college payment" provisions of the decree are set out in two distinct paragraphs and are obviously not related to one another. Furthermore, courts may acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). Viewing the contract and decree in this light, we think it apparent that the college payment provision of the decree was obtained in consideration for marital property, and that those payments therefore should be considered as marital property rather than child support. If the intention was to have child support continue into the children's majority while they were in college, the decree could simply have so provided. It did not so provide, however, and instead directed that specific college payments for specific expenses be made so long as certain well-defined conditions were met and, significantly, expressly provided that appellee's obligation to pay child support for each child would terminate when that child entered college. Finally, we note that there was no evidence presented of any reason for deviating from the chart, and that the chancellor's decision was based entirely on his erroneous reading of the agreement.

Reversed and remanded.

Hart and Meads, JJ., agree.