SANDRA GAYLE COBURN v. ROBERT L. COBURN, II
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RENDERED: MAY 12, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001453-MR
SANDRA GAYLE COBURN
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 96-CI-00685
v.
ROBERT L. COBURN, II
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Sandra Gayle Coburn appeals from an order of the
Boyd Circuit Court entered on May 18, 1998, that confirmed and
adopted a report of the Domestic Relations Commissioner (DRC)
which, inter alia, found that Robert Coburn was not in arrears in
paying temporary maintenance.
Having concluded that the trial
court did not err in its ruling, we affirm.
The parties were married in 1974 and separated in 1995.
On July 17, 1996, Robert filed a petition for dissolution of
marriage.
On July 31, 1996, Sandra filed a response seeking
division of property, custody of the parties’ daughter, and
maintenance, both temporary and permanent.
The parties then
reached an accommodation involving temporary child support,
maintenance, and payment of household expenses.
According to the
arrangement, in addition to some other expenses, Robert paid
Sandra $766 per month for child support and $1,500 per month in
temporary maintenance.
In October 1996, Robert filed a motion for a Putnam v.
Fanning,1 decree.
On October 31, 1996, the circuit court entered
a decree dissolving the marriage but reserving for further action
all issues as to custody, support and maintenance.
As part of
the local rules, Robert filed an expense schedule on April 24,
1997, in which he listed a $1,500 monthly expense for
maintenance.
On April 29, 1997, Sandra filed a motion for
temporary maintenance in which she stated that Robert had
previously voluntarily and consistently paid $1,500 per month
temporary maintenance, but that Robert had failed to make any
maintenance payment in March and April 1997.
Sandra asked the
trial court to enter an order awarding her temporary maintenance.
On May 2, 1997, the trial court entered an order stating, inter
alia, “IT IS FURTHER ORDERED that the Petitioner . . . pay the
expenses which the parties had agreed he would pay since the
separation in January 1995 as temporary measures until further
Orders of the Court.”
The trial court also referred the case to
the DRC for a final hearing.
On July 8, 1997, Sandra filed a motion for rule to hold
Robert in contempt of court for violating the trial court’s May
1
Ky., 495 S.W.2d 175 (1973).
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1997, order dealing with temporary maintenance.
In support of
her motion, Sandra stated in an affidavit that Robert was $4,000
in arrears on temporary maintenance for May through July 1997.
In his response to the motion, Robert alleged that he had paid
different amounts of maintenance since the parties’ separation
and that there was no firm agreement on the exact amount of
temporary maintenance he was to pay.
The trial court referred
the motion to the DRC.
On October 6, 1997, the parties entered into and filed
with the trial court a separation agreement that had been
prepared by Sandra’s attorney.
The agreement was comprehensive
and dealt with custody, visitation, child support, distribution
of property, maintenance, and various miscellaneous items.
The
agreement contained an “entireties clause” and a clause releasing
each of the parties from all claims including all claims for
maintenance.
On February 26, 1998, an evidentiary hearing was held
before the DRC.
Sandra testified that Robert had agreed to start
paying her temporary maintenance of $1,500 per month in October
1996, but that he had been inconsistent in those payments.
She
admitted that there was no written agreement between the parties
as to the amount of temporary maintenance.
Robert testified that
he did not believe he was obligated to pay any certain amount of
maintenance, but he did admit making several payments of $1,500
per month and stating in his April 1997, expense schedule that he
had a monthly maintenance expense of $1,500.
The DRC recommended
that Robert not be held in contempt for failing to pay $1,500 per
-3-
month maintenance because there was no order requiring him to pay
that amount.
In her exceptions to the DRC’s report, Sandra argued
that Robert was obligated to pay $1,500 per month temporary
maintenance under the trial court’s May 2, 1997, order.
In his
response, Robert countered that any alleged maintenance arrearage
was waived by the parties’ separation agreement.
On May 18,
1998, the trial court entered an order confirming and adopting
the DRC’s report.
This appeal followed.
Sandra argues on appeal that the trial court erred in
confirming the DRC’s report.
She contends that the DRC
erroneously concluded there was no court order requiring Robert
to pay temporary maintenance.
She points out that the trial
court’s May 2, 1997, order required Robert to “pay the expenses
which the parties had agreed that he would pay since the
separation in January 1995 as temporary measures until further
Orders of the Court.”
She further claims that Robert is estopped
from denying the existence of an agreement between the parties
that he pay $1,500 per month maintenance because his April 24,
1997, expense schedule, which listed an expense of $1,500 per
month for maintenance, constituted a judicial admission.
Combining these two arguments, Sandra maintains that the trial
court erred by refusing to award her an amount for arrearage for
temporary maintenance.
First, we do not believe that Robert’s April 1997,
expense schedule represents a judicial admission that he had
agreed to pay $1,500 per month in temporary maintenance.
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“A
judicial admission is a formal act by a party in the course of a
judicial proceeding which has the effect of waiving or dispensing
with the necessity of producing evidence by the opponent and bars
a party from disputing a proposition in question.”2
However, in
order to be conclusive on an issue, the party’s statement “in the
light of all the conditions and circumstances proven, must
additionally not give rise to the probability of error in the
party’s own testimony.”3
Furthermore, “the determination by a
court that a party may not contradict an admission is strong
medicine and should be sparingly administered.”4
Consequently,
we are reluctant to classify Robert’s expense schedule as a
judicial admission.
It merely indicates that he claimed to be
paying $1,500 per month maintenance, not that there was a firm
agreement between the parties on the issue.
Sandra’s own
testimony indicates that Robert was inconsistent in actually
paying the stated amount.
The trial court’s order is similarly
ambiguous because it fails to state a specific amount.
Moreover,
we note that Sandra did not argue before the trial court that
Robert’s statement constituted a judicial admission, only that it
provided some evidence of an agreed upon amount of maintenance.
2
Nolin Production Credit Ass’n v. Canmer Deposit Bank, Ky.
App., 726 S.W.2d 693, 701 (1986).
3
Id. (emphasis in original)(citations omitted). See also
McGuire v. Citizens Fidelity Bank & Trust Co., Ky., 805 S.W.2d
119 (1991)(finding parties’ unambiguous and unequivocal statement
in a report in probate proceeding binding as a judicial
admission).
4
Goldsmith v. Allied Building Components, Inc., Ky., 833
S.W.2d 378, 380 (1992).
-5-
Therefore, we cannot say that the trial court erred by failing to
award Sandra an arrearage based on the May 2, 1997, order.
Even if we were to accept Sandra’s position concerning
the May 1997 order, we agree with Robert that the separation
agreement constituted a waiver of any claim to an arrearage for
temporary maintenance.
The pertinent provisions of the agreement
provide as follows:
6.
MAINTENANCE
6.1 The issue of amount and duration of
maintenance and the number of months [Robert]
shall be responsible for Sandra’s health
insurance premiums are specifically reserved
for determination at a later date.
7.
RELEASE
7.1 Each party does hereby release and
discharge the other from any and all claims,
demands, liabilities, damages, actions,
choses in action whatsoever, including but
not limited to any and all claims for past,
present and future maintenance, dower,
curtesy, descent and distribution, and any
and all other claims arising out of the
marriage or otherwise, but excepting from
such releases the obligations contained in
this agreement.
. . .
10.
MISCELLANEOUS
. . . .
10.2
Each party acknowledges that this
agreement is a full, fair, just, and final
settlement of all matters of property between
the parties. Each party acknowledges that he
or she has had an adequate opportunity to
discuss this agreement with his or her
attorney and fully understands all of the
provisions contained herein.
10.3
This agreement contains the entire
agreement between the parties. There are no
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warranties, representations, understandings,
arrangements, agreements, contracts, or
inducements whatsoever except as set forth in
this agreement. Each party acknowledges that
he or she is not relying on any
representation, statement, or inducement
which is not set forth in this instrument.
The separation agreement was executed on September 29,
1997, subsequent to the trial court’s May 1997 order and prior to
the DRC’s report.
Section 7 clearly states that Sandra released
Robert from “all claims, demands, liabilities . . . including but
not limited to any and all claims for past . . . maintenance
[emphasis added].”
Sandra’s argument that Subsection 6.1
preserved her right to arrearages for temporary maintenance is
unconvincing.
By making reference to “duration” of maintenance,
we understand Subsection 6.1 to have reserved the issue of the
amount and duration of future maintenance, not past maintenance.
As a result, we conclude that Sandra waived any claim to an
arrearage for temporary maintenance in the separation agreement.
For the above stated reasons, we affirm the order of
the Boyd Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James H. Moore, III
Philip Q. Ratliff
Ashland, KY
Roger W. Hall
Ashland, KY
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