JUDITH PATIERNO GATLING v. DANNY PATIERNO
Annotate this Case
Download PDF
RENDERED: APRIL 28, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002754-MR
JUDITH PATIERNO GATLING
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 89-CI-00356
v.
DANNY PATIERNO
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Judith Patierno Gatling has appealed from an
order of the Pike Circuit Court concerning the proper
interpretation of the agreement between the parties which settled
their dissolution proceeding and was made a part of the final
decree of dissolution.
In dispute are the agreement’s provision
that Danny Patierno’s child support obligation for his oldest
daughter would continue so long as the daughter continued her
education, and the agreement’s provision for a payment by Judith
to Danny relating to Danny’s equity interest in the marital
residence.
Judith and Danny were married on December 10, 1967.
Two children were born during the marriage: Justina Lynn
Patierno, born August 6, 1970, and Dana Rhae Patierno, born April
25, 1977.
On March 15, 1989, Danny filed a petition to dissolve
the marriage.
Judith entered an appearance agreeing that the
marriage was irretrievably broken and waived service of summons
without retaining separate counsel.
The parties entered into an
agreement concerning division of marital property, child custody,
child support, and all other matters relating to the marriage of
the parties.
On May 24, 1989, the trial court entered the
divorce decree and incorporated the parties’ agreement into its
final judgment.
The decree provided that Danny was to pay
$250.00 per month in child support for each child so long as the
child was continuing her education.
On May 1, 1990, Danny filed a motion to reduce his
child support payments on the basis that he had injured his back
and was no longer able to earn additional income by moonlighting
as a swimming pool installer.
Also during this time, Judith
filed a motion for a wage assignment and for recovery of child
support arrearages.
On July 20, 1990, an agreed order was
entered wherein Danny acknowledged his ongoing duty, consistent
with the dissolution agreement, to pay child support of $500.00
per month.
The agreed order also provided for the payment of
child support arrearages and imposed a wage assignment.
Despite the terms of the dissolution agreement, and
even though Justina continued to pursue her education, on August
8, 1990, Danny petitioned the trial court to reduce his child
-2-
support on the basis that Justina had married.
On August 17,
1990, the trial court entered an order which, in effect, granted
Danny’s motion by implying that Danny’s child support should be
reduced to reflect support for one child only.
The order
provided that payment would initially be $400.00 per month, but
that upon the receipt of the parties’ respective check stubs,
child support would be recalculated for one child pursuant to the
child support guidelines.
On March 27, 1991, the trial court
entered an order setting child support at $453.00 per month.
It
appears that the order intended to set child support for only
one child, Dana, pursuant to the child support guidelines.
Justina was not mentioned by name, or even indirectly alluded to,
in either the August 17 or March 27 orders.
On February 15, 1994, Danny filed a motion requesting a
hearing on the issue of whether he was entitled to $10,000.00 of
the proceeds received by Judith as a result of her sale of the
marital residence.
The motion was based upon paragraph 4 of the
dissolution agreement, which provided that Judith may, when Dana
turned 21 years of age, purchase Danny’s interest in the marital
home.
On March 3, 1994, as an apparent response to Danny’s
motion, Judith filed a motion contending that, pursuant to the
dissolution agreement, Danny owed past and future child support
for Justina because Justina was enrolled in school and continuing
her education.
The motion further requested that the trial court
recalculate child support based upon the parties’ current incomes
and increase Danny’s support obligation if appropriate.
-3-
Danny’s
February 15 motion and Judith’s March 3 motion were referred to a
Special Commissioner for the taking of evidence and for a report
and recommendation.
On January 30, 1995, again despite the dissolution
agreement and even though Dana was continuing her education,
Danny filed a motion requesting that the wage assignment against
him be released because Dana would soon be turning 18 years old
and “his obligation to pay child support will thereupon cease.”
On April 5, 1995, Danny re-filed the same motion.
On June 2,
1995, the trial court entered an order which granted Danny’s
petition and “suspended” his child support obligation effective
the month Dana turned 18 years of age or the month she graduated
from high school, whichever occurred later.
On July 27, 1995, Judith filed a motion pursuant to CR1
60.02 for relief from the June 2 order.
The motion contended
that Judith had not received proper notice of the hearing on
Danny’s motion and, pursuant to the parties’ dissolution
agreement, Danny was obligated to continue to pay child support
as long as Dana continued her education, including college and
post-graduate schooling.
On August 9, 1995, Judith filed a motion for back child
support from June 2, 1995, and requested that Danny be ordered to
pay child support until Dana completed her education.
On August
25, 1995, the trial court set aside its June 2, 1995, order that
had suspended Danny’s child support obligation.
Judith’s motion
for an order compelling payment of past child support and
1
Kentucky Rules of Civil Procedure.
-4-
reinstatement of child support were abated pending further
review.
On April 3, 1996, the trial court entered an order
ruling that its August 17, 1990, order setting child support at
$400.00 per month did not set aside the parties’ dissolution
agreement insofar as the agreement obligated Danny to pay child
support so long as the parties’ children continued their
educations, including college or post-graduate work.
The order
required Danny to continue to pay child support for Dana so long
as she continued her education, with the payments to be made
directly to Dana.
However, the order appears to have been
intended to apply to Dana only, as Justina was not mentioned in
the order, and Danny was not ordered to pay either past or future
child support for Justina.2
On November 27, 1986, the Special Commissioner filed
his report and recommendations.
The Special Commissioner
concluded that Danny’s obligation to pay child support for
Justina, pursuant to the dissolution agreement, continued until
she had completed her education.
The report further concluded
that prior orders of the court, namely the March 27, 1991, order,
did not alter Danny’s support obligation in regards to Justina.
With regard to Danny’s interest in the marital home, the Special
Commissioner concluded that Danny was entitled to $10,000.00, the
2
It is not clear from the record exactly when Justina
completed her post-high-school education. It appears that, at a
minimum, she continued her education through college. Justina
was born in 1970, and presumably would have completed high school
in approximately 1988. She may have completed college in
approximately 1992. However, post-graduate work may have
extended her education for several years beyond this.
-5-
amount identified in the dissolution agreement as representing
Danny’s interest in the home.
Both sides filed exceptions to the Commissioner’s
report.
The trial court accepted the Commissioner’s
recommendation that Danny was entitled to $10,000.00 of the
proceeds from the sale of the marital residence as his share of
the residence.
However, the trial court rejected the Special
Commissioner’s recommendation with respect to Danny’s child
support obligation regarding Justina.
In an order entered on
August 11, 1998, the trial court determined that Danny had been
released from the child support obligation regarding Justina by
its August 17, 1990, order.
Judith filed a motion to alter,
amend, or vacate, which was denied on October 14, 1998.
This
appeal followed.
We agree with the trial court that its order of August
17, 1990, terminated Danny’s child support obligation with
respect to Justina.
Paragraph 5 of the parties’ dissolution
agreement provides as follows:
The parties hereto agree that [Judith]
is the proper person to have the care,
custody and control of the parties’ infant
children. [Danny] agrees to pay to [Judith]
the sum of $250.00 per month as child support
for Justina Lynn Patierno, until she is no
longer continuing her education. Danny
further agrees to pay to [Judith] the sum of
$250.00 per month as child support for Dana
Rhae Patierno until she is no longer
continuing her education. Four years from
the date hereof, the child support for Dana
Rhae Patierno shall be increased to the sum
of $400.00 per month for so long as said Dana
Rhae Patierno is continuing her education,
including college or post graduate work past
her eighteenth birthday [emphasis added].
-6-
The law clearly allows parties to contract to have
child support extended beyond the statutory standard of KRS
403.213(3), which provides that, absent an agreement, child
support generally terminates when the child turns 18 years of age
or graduates from high school, whichever is later.3
In their
dissolution agreement, the parties unquestionably extended
Danny’s child support obligation as to both Justina and Dana.
The agreement provides that Danny is to be obligated to pay child
support for Justina until she completes her education without
regard to whether she turns 18 years of age or gets married.
While the agreement does not specifically state that child
support will continue beyond marriage, it likewise does not state
that child support will terminate upon marriage.
Despite the dissolution agreement, on August 8, 1990,
Danny filed a motion which stated, in pertinent part, as follows:
Comes now the Petitioner and moves the Court
for an Order cutting in half his wage
assignment withholding order. One of the
parties’ children married on July 28, 1990
and the child support order should so reflect
this.
On August 17, 1990, the trial court entered an order which
stated, in pertinent part, as follows:
This matter having come on for hearing
on the motion to reduce child support and
further on a motion for rule and the Court
having heard the evidence of the parties as
well as from Counsel, IT IS HEREBY ORDERED AS
FOLLOWS:
(1) That for the month of August,
that the Petitioner shall pay to
3
Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975);
Showalter v. Showalter, Ky., 497 S.W.2d 420 (1973).
-7-
the Respondent the sum of $400.00
Dollars per month as child support
for the month of August.
(2) That upon receipt of the first
check of the school year for 199091 both parties are to provide
copies of their check stubs to the
Court reflecting the income rate
for the school year of 1990-91.4
Upon receipt of those checks, the
Court will recalculate child
support for the one infant child
based upon the child support
schedule [emphasis added].
Judith did not appeal or otherwise object to this
order.
While the order does not specifically so state, we
construe this order as, by implication, granting Danny’s motion
to terminate his child support obligation as to Justina.
The
order established child support at $400.00 per month as a
temporary approximation of the support obligation for one child,
until current salary information could be gathered to calculate
the actual obligation for one child under the schedules.
For
reasons that the record does not reflect, however, the
calculation of the actual support obligation appears to have been
delayed.
Following this delay, on March 27, 1991, the trial
court entered an order which stated, in pertinent part, as
follows:
This matter having come before the Court
on motion for rule as well as other matters
and the parties’ having represented to the
Court that they have reached an agreement
regarding payment of child support due and
owing as well as future child support and
4
Danny and Judith were at the time employed as
educators by the Pike County Board of Education.
-8-
payment on the second mortgage to the First
National Bank of Pikeville Kentucky;
IT IS HEREBY ORDERED AS FOLLOWS:
1. That the Petitioner, Danny Patierno,
is to pay the Respondent, Judith Lyons
Patierno, the sum of $453.00 per month as
child support for the infant, Dana Rae
[sic][emphases added].
The order goes on to discuss wage assignment issues and provides
that Danny’s wage assignment should remain at its present level
until certain arrearages are satisfied, at which time it will be
reduced to $453.00, the amount of child support provided for in
the order.
Judith did not appeal the March 27 order.
When read together, we interpret the August 17, 1990,
and the March 27, 1991, orders as holding that Danny no longer
has a child support obligation with respect to Justina.
The
August 17 order, an order addressing Danny’s motion to eliminate
his support obligation to Justina, refers to calculating child
support for “the one infant child.”
clearly refers to Dana.
“The one infant child”
Similarly, the March 27 order omits
child support for Justina from an order which is intended to
establish Danny’s ongoing child support obligation.
By omitting
a child support provision for Justina from Danny’s ongoing
obligation, by implication Danny’s child support obligation for
Justina was eliminated.
In interpreting these orders, we agree with the trial
court’s discussion in its August 11, 1998, order as follows:
Danny excepts to the Commissioner’s
Recommendation that he pay child support for
Justina after her marriage but before her
education was through. According to this
Court’s August 17, 1990, Order, the parties
-9-
would submit income information so that the
Court could recalculate child support based
on one infant child, not two. It would be
patently unfair to require Danny to pay back
child support on an emancipated child when he
had been released from that obligation by
this Court [emphasis added].
Thus, the trial court interpreted its own prior orders
as having released Danny from his child support obligation as to
Justina.
Moreover, the conduct of the parties supports this
interpretation.
We cannot reconcile Judith’s conduct following
the entry of these orders with a belief that Danny had a child
support obligation with respect to Justina.
Judith otherwise
aggressively litigated any arrearages owed by Danny.
Her conduct
in not seeking arrearages with respect to Justina following the
entry of the August 17, 1990, order is wholly inconsistent with
the notion that she believed she was entitled to these sums.
Judith did not appeal the August 17, 1990, order or the
March 27, 1991, order.
Having concluded that these orders, by
implication, held that Danny no longer had a child support
obligation with respect to Justina, we must also conclude that
because Judith did not appeal those orders, we may not now
examine those unappealed final orders for error.5
The orders
were clearly final orders and, no appeal having been taken from
them, they could be set aside only by proceedings under CR
60.02.6
There are no allegations here to warrant relief under
5
CR 73.02(1)(a).
6
Walters v. Anderson, Ky., 361 S.W.2d 31, 32 (1962).
-10-
that rule.
Therefore, the trial court properly rejected Judith’s
claim.7
The second issue concerns Judith’s claim that upon
selling the marital home she did not become obligated to pay
Danny $10,000.00 as a reimbursement for his interest in the
property.
Paragraph 4 of the parties’ dissolution agreement
provides as follows:
[Judith] shall have possession and control of
the marital home located at Johns Creek, Pike
County, Kentucky, until such time as the
parties’ infant child, Dana Rhae Patierno
reaches the age of 21. Upon Dana Rhae
Patierno becoming 21, the respondent may
purchase [Danny’s] interest in the marital
home for the total purchase price of
$10,000.00. At such time, Danny agrees to
execute a deed of conveyance to [Judith] for
all his right, title and interest in and to
the marital home and lot located at Johns
Creek, Pike County, Kentucky [emphases
added].
The discussion in the Special Commissioner’s report,
adopted by the trial court, thoroughly summarizes and resolves
the issue, and we therefore adopt the following from that report:
Approximately three (3) years ago
[Judith] sold the marital home to friends of
her parents who now occupy the same as their
residence. [Judith] has not paid [Danny]
$10,000.00 or any other amount as a result of
this sale. [Judith] testified that it was
her understanding of Paragraph 4 of the
Property Settlement Agreement that she had
the discretion to purchase [Danny’s] interest
in the marital home when the parties’
youngest daughter attained the age of 21 or
7
CR 60.02 permits relief based upon the grounds of
inadvertence or mistake if the motion for relief is made within
one year. Here, the applicable trial court orders were entered
on August 17, 1990, and March 27, 1991. Judith first sought to
rectify any inadvertence or mistake as to those orders by her
motion of August 9, 1995.
-11-
when the youngest daughter got married, which
ever occurred first. It was further the
understanding and contention of [Judith] that
in the event of the sale of the home that she
had discretion as to whether or not to remit
$10,000.00 of the purchase price to [Danny].
Conversely, [Danny] testified that he
understood Paragraph 4 of the Agreement to
require [Judith] to pay to [Danny] $10,000.00
in the event of [Judith’s] sale of the
marital home as well as granting her the
right to purchase [Danny’s] interest in the
home for $10,000.00 when the parties’
youngest daughter married or attained the age
of 21 which ever occurred first.
Paragraph 4 of the Property Settlement
Agreement does not specifically state that
[Judith] shall pay [Danny] $10,000.00 if the
marital home is sold. However, the language
of Paragraph 4 clearly recognizes that
[Danny] had an interest in the marital home.
The Agreement recites that “[Danny] agrees to
execute a deed of conveyance to [Judith] for
all his right, title, and interest in and to
the marital home and lot[.]” By those words,
the parties acknowledged that [Danny] held an
interest in the property. The parties, by
stating the consideration to be paid in the
purchase option, have valued [Danny’s]
interest at $10,000.00. The Agreement gives
Judith no ability to defeat or diminish
[Danny’s] interest in the marital home by
selling same to unrelated third parties.
Since [Danny’s] interest was apparently
conveyed to the third parties as well as the
interest of [Judith], [Danny] must be
compensated for his portion of the marital
home.
Separation agreements are reviewed by the courts under
the same principles as any other contract.8
The duty of the
courts in contractual disputes is to “construe contracts and not
8
Richey v. Richey, Ky., 389 S.W.2d 914 (1965); Nelson
v. Mahurin, Ky.App., 994 S.W.2d 10 (1998); Leathers v. Ratliff,
Ky.App., 925 S.W.2d 197 (1996); Lydic v. Lydic, Ky.App., 664
S.W.2d 941 (1983).
-12-
to construct them.”9
When “parties reduce their engagement to
writing in such terms as to make it a complete contract, their
rights must be controlled thereby.”10
We construe the dissolution agreement as acknowledging
that Danny had a marital interest in the home in the liquidated
amount of $10,000.00.
We further construe the buy-out language
as a provision to defer the division of Danny’s marital interest
in the home until such time as the children left the residence.
Judith’s argument that Danny’s interest in the home was somehow
destroyed by her decision to sell the home is untenable.
The
trial court did not err in awarding Danny a judgment for his
interest in the marital home.
For the foregoing reasons the judgment of the Pike
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Pamela Robinette-May
Pikeville, KY
C. Tom Anderson
Prestonsburg, KY
9
Snyder v. Traveler’s Fire Ins. Co., 282 Ky. 555, 138
S.W.2d 1036-38 (1940).
10
Geary-Gay Motor Co. v. Chasteen, 248 Ky. 393, 58
S.W.2d 393, 394 (1933).
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
