MARTY D. NEAL v. REBECCA C. NEAL
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RENDERED:
November 12, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001491-MR
MARTY D. NEAL
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 02-FC-502852
REBECCA C. NEAL
(NOW GESELBRACHT)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
SCHRODER AND TACKETT, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE.
The single issue in this appeal is
whether the trial court erred in entering a judgment in the
amount of $10,583.20 for arrearages in child support payments,
daycare expenses and car and credit card expenses.
Appellant,
Marty Neal, argues that appellee, Rebecca Neal, was not entitled
to arrearages because the parties’ mediation agreement relieved
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
him of any obligation for amounts ordered pendente lite.
We
disagree and affirm.
On September 19, 2002, the trial court entered an
order in accordance with the Commissioner’s recommendation for
temporary child support amounting to $988 per month and ordering
appellant to continue to be responsible for the payments made by
him at the time of separation including appellee’s car payment
and payments toward the credit card debt.
The parties
subsequently entered into a mediated agreement, which became an
order of the court entered November 6, 2002.
That agreement
specifically provided that permanent support started on October
3, 2002, the date of mediation, and that “any arrears to be paid
at $100 per month.”
The agreement also provided that daycare
and uncovered medical expenses would be divided 52% to appellant
and 48% to appellee.
On November 22, 2002, appellee filed a motion to hold
appellant in contempt for failure to pay pendente lite child
support, daycare expenses, car payments and credit card payments
as directed in the September 19, 2002, order.
After a hearing,
the trial court granted appellee’s motion and entered a judgment
against appellant in the amount of $10,583.20.
Appellant argues
in this appeal that appellee’s execution of the mediation
agreement relieves him of any obligation for claims arising
before October 3, 2002, which are not specifically provided for
-2-
in the mediation agreement and not reserved in the decree of
dissolution.
We disagree.
A reading of the mediation agreement makes clear that
it was not intended to relieve appellant from his obligation
under the September 19, 2002, order and, in fact, makes specific
provisions for child support arrearages.
Furthermore, nothing
contained in the briefs filed in this court or in the record of
the proceedings below indicates that appellant contested the
amount of arrearages or even responded to appellee’s contempt
motion.
Based upon this record and a fair reading of the
parties’ mediated agreement, we find no basis for disturbing the
decision of the trial court.
Appellant relies upon the following preprinted
language in the mediation agreement for the proposition that it
extinguished his obligations under the September 19, 2002,
order:
15.
The parties hereby mutually release
each other of any and all claims either
may have against the other, including,
but not limited to, support,
maintenance, alimony, curtsey, dower,
decent [sic] and distribution, except
as otherwise provided for hereinabove.
(Emphasis added.)
We are convinced that specifically agreed upon terms
satisfy that requirement.
Furthermore, we agree with appellee
that the circumstances of this case fall within the rationale of
-3-
Price v. Price,2 concerning the effect of the support order of
September 19, 2002.
The Price court reiterated the well-
established principle that child support can only be modified
prospectively and that unpaid periodic support payments become
vested when due.
Nothing in the parties’ mediation agreement
can be construed as evincing intent to relieve appellant from
liability for vested pendente lite obligations, and certainly
not the fact that he simply chose not to pay them.
Finally, because this record is totally devoid of any
indication that the arguments appellant advances in this appeal
were presented to the trial court, we have a serious question as
to whether this issue has been properly preserved for our
review.
Accordingly, the judgment of the Jefferson Family
Court is, in all respects, affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ray H. Stoess, Jr.
Louisville, Kentucky
Lawrence I. Young
Louisville, Kentucky
2
Ky., 912 S.W.2d 44 (1995).
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