Gary Wayne White v. Joanne McConnell White

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATON

JUDGE JOSEPHINE LINKER HART

DIVISION IV

GARY WAYNE WHITE

APPELLANT

V.

JOANNE McCONNELL WHITE

APPELLEE

CA03-128

June 18, 2003

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. DR-98-20]

HONORABLE BENTLEY EARL STORY, CIRCUIT JUDGE

AFFIRMED

The circuit court ordered appellant, Gary Wayne White, to pay $11,713.17 in 112 monthly installments of $169.26 to appellee, Joanne McConnell White, which the court concluded was required by the parties' "Property Settlement, Child Custody and Support Agreement" (agreement). Appellant argues that the court's order constituted a rewriting of the parties' agreement, as the agreement provided that he was to pay these sums to Forrest City Bank to satisfy a note and second mortgage on the marital residence and that this obligation was extinguished when appellee paid the note in full as part of her sale of the residence. Further, he asserts that because the parties' minor child had reached the age of majority, he had no continuing obligation under the agreement to pay child support, and consequently, the sum could not be deemed as child-support payments. We affirm.

The parties' March 6, 1998, agreement acknowledged that they had one child who had reached the age of majority and a minor child, Blair White. The agreement provided inpart

as follows:

[Appellant], in consideration of settlement and in support of the parties' children, specifically, the parties' minor child, shall pay the balance of the second mortgage on the marital residence ... in favor of Forrest City Bank, N.A., in the approximate amount of $167.00 per month. [Appellant] agrees to assume and pay said second mortgage in favor of Forrest City Bank, N.A., according to the terms thereof, and to hold wife harmless therefrom, including all costs and attorney's fees which may be incurred by [appellee] as a result of [appellant's] failure to pay said debt. It is the expressed intention of these parties that the payment of the second mortgage, by [appellant], shall be for the benefit of the parties' children, that they remain in their lifelong home, and as additional support for the parties' minor child, Blair R. White.

Appellant further agreed to quitclaim his interest in the marital residence. In a separate provision governing marital debt, the agreement further provided that appellant "shall be responsible for the second mortgage debt, in favor of Forrest City Bank, N.A., in the approximate amount of $167.00 per month, and further agrees to hold [appellee] harmless with regard to said debt." On March 9, 1998, the circuit court entered a decree of divorce. In the decree, the court stated that the agreement was "just and fair" and was approved as part of the decree.

In 2002, appellee sold the marital residence, and proceeds from the sale were used to extinguish the second mortgage and underlying note. Appellee then made demand upon appellant to pay her $11,713.17, which was the payoff amount of the second-mortgage note as of April 29, 2002, the closing date of the sale of the property. Appellant refused to make the payment, and appellee filed a petition for a contempt citation, asking that appellant be found in contempt and ordered to pay an amount equal to the entire balance of second mortgage loan to appellee. In his response, appellant contended that, according to the termsof the agreement, his obligation was to pay $169.26 monthly, not to appellee, but to Forrest City Bank, and appellee, by paying off the note early with no notice to him, extinguished his duty to make payments on the note.

A hearing was held November 7, 2002, and in its order filed November 18, 2002, the court noted that the agreement did not address the issue of the sale of the home. The court stated that there was a contractual agreement between the parties concerning payment of the second mortgage to Forrest City Bank and that part of the contractual agreement provided that the payment constituted child support. The court concluded that appellant's "duty and obligation to support his children was still in effect and was not extinguished" and concluded that he still owed "the obligation on the second mortgage, such obligation now being owed to" appellee.

We can answer appellant's arguments on appeal by addressing appellant's assertion that because Blair White had reached the age of majority, he had no continuing obligation to continue paying child support under the agreement. When a contract is free of ambiguity, its construction is a matter of law for the court to determine. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992). Here, the agreement unambiguously provided that it was the "expressed intention of these parties that the payment of the second mortgage, by [appellant], shall be for the benefit of the parties' children, that they remain in their lifelong home, and as additional support for the parties' minor child, Blair R. White." By providing that the payment of the second mortgage constituted additional support for Blair White, the agreement anticipated that the payments constituted child support. Further, the agreement

unambiguously provided that appellant's child-support payments for Blair White were to extend past her majority, as she was past the age of majority at the time the house was sold, and yet an outstanding balance of $11,713.17, to be paid in monthly installments of $169.26, remained to be paid. This consequently undercuts appellant's claim that he had no continuing duty to pay child support under the agreement. Thus, we agree with the circuit court that there was a contractual agreement between the parties concerning payment of the second mortgage to Forrest City Bank and that part of the contractual agreement provided that the payment constituted child support.

We recently noted in Harris v. Harris, ___ Ark. App. ___, ___ S.W.3d ___ (May 28, 2003), that a parent can contract and bind himself to support a child past the age of majority, that a parent who agrees at the time of divorce to continue support until the minor children are beyond the age of eighteen commits himself to uphold such an obligation, and that such a contract is just as binding and enforceable as any other contract. We noted further that such independent contracts, however, are not binding on the trial court, and the trial court always retains jurisdiction over child-support issues as a matter of public policy, and no matter what the parties' independent contract provides, either party had a right to request a modification of a child-support award. We further stated that a party seeking to modify child support has the burden of showing a change in circumstances sufficient to warrant a modification. And we noted that on appeal, our review of a trial court's order of child support is de novo, and we affirm unless its findings of fact are clearly erroneous.

Given that appellant was contractually obligated to make child-support payments afterBlair White reached majority, we must then ask whether there was a change of circumstances sufficient to modify child support. As we noted in Harris, the various factors that the trial court may consider include remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart.

With regard to these factors, we note that Blair White has reached the age of majority. Further, the sale of the house precluded satisfaction of expressed intent of the parties that appellant's payment of the second mortgage was so that "the parties' children" continued to "remain in their lifelong home," and because the underlying note was paid off, there was no continuing obligation on appellant's behalf to satisfy the second-mortgage note by making payments to Forrest City Bank. Countervailing considerations, however, are that appellant agreed to make payments in the amount provided in the agreement, that the payments were additional support for Blair White, and that such payments would extend past her majority.

Given these facts, we conclude that a modification of these child-support payments was not required. Regardless of whether the payments were to be made to Forrest City Bank or to appellee, the intent of the parties would not be frustrated, as the payments would constitute additional support for Blair White.1 Thus, we cannot say that the trial court clearly erred in concluding that appellant's "duty and obligation to support his children was still ineffect and was not extinguished" and in concluding that he still owed "the obligation on the second mortgage, such obligation now being owed to" appellee.

Affirmed.

Pittman and Robbins, JJ., agree.

1 We note that the attorney for appellee stated to the circuit court that at the time of the hearing, Blair White remained dependent on appellee.