DEATON (REBECCA ELLIOTT) VS. ELLIOTT (CHESTER M.)
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RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001873-MR
REBECCA ELLIOTT DEATON
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 02-CI-02508
CHESTER M. ELLIOTT
APPELLEE
OPINION
AFFIRMING
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BEFORE: CAPERTON AND MOORE, JUDGES, AND GUIDUGLI,1 SENIOR
JUDGE.
MOORE, JUDGE: Rebecca Elliott Deaton (wife) appeals the order of the Kenton
Family Court denying her motion to reconsider and motion for relief from the
court’s prior order denying her motion for contempt. After a careful review of the
record, we affirm.
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Senior Judge Daniel T. Guidugli, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
I. FACTUAL AND PROCEDURAL BACKGROUND
Deaton and Chester M. Elliott (husband) were married in 1982, and
they subsequently had one child. They separated in 2002 and later entered into a
separation and property settlement agreement (agreement). The agreement
provided, inter alia, as follows:
11. MAINTENANCE
The Husband, as maintenance to the Wife, shall pay off
the present mortgage on the residence at 13 Pike Street,
Bromley, Kenton County, Kentucky 41016. In the event
the Husband is late on any of these payments, he shall be
responsible for any and all late fees and any other fees
associated with his being late or failure to pay.
***
16. BANKRUPTCY AND MODIFICATION OF
SEPARATION AGREEMENT:
Both parties agree that this Agreement, as it relates to
both real and personal property and to the assignment of
responsibility for marital debts, shall inure to the benefit
of, and be binding on, the parties and their respective
heirs, executors, administrators, successors, and assigns,
and may not be modified or changed other than by future
agreement by the parties in writing, with the exception of
the following: if either party files a bankruptcy and seeks
a discharge of any of the debts referenced specifically or
generally in this Separation Agreement, then the parties
agree that this Court retains jurisdiction to set aside this
Separation Agreement and provide for an equitable
division of marital assets and debts as between Husband
and Wife, taking into consideration the discharge of debt
by the party filing the bankruptcy.
The family court entered its findings of fact and conclusions of law,
then entered a decree of dissolution. The decree stated that the court found the
parties’ agreement “not to be unconscionable,” and the court incorporated the
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agreement by reference as part of the decree. The parties were ordered to perform
the agreement’s terms.
Almost two years later, the wife filed a motion for contempt, asking
the family court to hold the husband in contempt for failing to pay the maintenance
amounts awarded to her under their agreement. In support of this motion, the wife
filed her own affidavit, attesting that she “was awarded maintenance in an amount
equal to the mortgage payments and mortgage balance due on her home,” and that
she had “been informed that [the husband] ha[d] not been making mortgage
payments as ordered by [the family court.]” The wife specifically attested in her
affidavit that the mortgage payments were “in the form of maintenance.” The
affidavit further stated that the wife had “received a notice of foreclosure.” The
foreclosure involved the residence for which the husband had been ordered to
make mortgage payments.
The family court held a hearing on the motion. In November 2006,
the court entered an order finding that the husband filed for Chapter 7 Bankruptcy
in 2005
and was granted a Discharge; [a] foreclosure action was
begun by Fifth Third Bank in reference to the residence
of [the wife]; [the husband had] not made payments
toward the mortgage obligation as was contemplated in
paragraph 11 of the Separation Agreement filed and
entered in this matter; [and the wife had] recently had to
file a Chapter 13 Bankruptcy in an effort to stop the
foreclosure and pay back the mortgage arrearage.
The family court then ordered the husband to pay
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$611.00 per month for the current monthly mortgage
payments that are due; . . . [to] pay the sum of $800.00
per month to [the wife]; [to meet] the mortgage arrearage
obligation currently now being paid thru (sic) [the wife’s]
bankruptcy case. . .; [to] make adjustments to his
payment schedule to [the wife] in order to ensure that the
entire amount of mortgage arrearage is paid off during
the duration of [the wife’s] 5 year Chapter 13 Plan; [and
to] make all payments . . . to [the wife] not later than the
7th day of each month following the entry of this order.
The husband subsequently moved for relief from the family court’s
order, pursuant to CR 60.02(a) on the grounds that the wife had re-married “on or
about December, 2005”; “[t]hat this marriage was not disclosed to the Court at its
hearing on October 17th, 2006”; [t]hat there was no provision in the separation
agreement or decree of divorce between the parties specifically stating that
maintenance payments would survive the re-marriage of the party receiving the
maintenance”; and “[t]hat KRS 403.250(2) specifically provides that ‘[u]nless
otherwise agreed in writing or expressly provided in the decree, the obligation to
pay future maintenance is terminated upon the death of either party or the
remarriage of the party receiving maintenance.’”
The family court entered an order noting that it had not been advised
before it entered its order granting the wife’s motion for contempt that the wife had
“remarried on or about January 1st, 2006.” The court found that, pursuant to KRS
403.250(2), the husband’s maintenance obligation terminated “upon the [wife’s]
remarriage.” The court then determined that the maintenance payments had been
agreed upon “as a lump sum arrangement payable in installments,” and that the
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husband’s “responsibility to make payments on the mortgage terminated when [the
wife] remarried.” The family court then overruled the wife’s motion for contempt
and held that because the husband’s maintenance obligation terminated upon the
wife’s remarriage, he was “only liable for the monthly mortgage payments that had
vested in the months prior to [her] remarriage.”
The wife filed a motion for reconsideration and motion for relief from
the family court’s order. She asked that the order be amended “to provide for the
allocation of the mortgage debt of the parties, or in the alternative, for an order
setting this matter for hearing to determine the allocation of the mortgage debt.
The wife argued that “[a] review and allocation of debt is appropriate under
paragraph 16 [of the parties’ agreement] in light of both [parties’] bankruptcy
filings.”
The family court denied the wife’s motion to reconsider and motion
for relief from the court’s prior order. The court reasoned that “the issue regarding
the allocation of the mortgage debt of the parties is a moot issue,” because the
court had previously determined that
the mortgage debt was classified as maintenance in the
separation agreement, such that the [husband’s] payment
of the mortgage debt to Fifth Third was to be classified as
maintenance to the [wife]. The maintenance
responsibility terminated upon the [wife’s] remarriage.
Therefore, the [wife] is liable for the mortgage debt
accumulated after her remarriage and the [husband] is
responsible only for the mortgage debt accumulated prior
to her remarriage. This result is harsh. However, the
parties, by agreement, classified the payment of the
mortgage as “maintenance” and not as a “debt” payment.
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As maintenance, it was not bankruptable, but subject to
termination upon remarriage. [The wife] was in total
control of whether she remarried.
The wife now appeals, contending that she is entitled to a hearing as
to the allocation of assets and debts following the bankruptcy filings of both
parties.
II. ANALYSIS
Paragraph Eleven of the parties’ separation agreement specifically
provided that the husband’s mortgage payments were maintenance. Both parties
agreed to this, and it became part of the divorce decree. Although the husband
filed for bankruptcy, “[n]ot all marital debts are dischargeable in bankruptcy.”
Holbrook v. Holbrook, 151 S.W.3d 825, 827-28 (Ky. App. 2004). Specifically,
maintenance is not dischargeable in bankruptcy. See id. at 828 (citing 11 U.S.C. §
523(a)(5)). Therefore, the mortgage payments that the husband was obligated to
make under the separation agreement were not dischargeable in his bankruptcy
proceedings, and he remained liable for those payments.
Pursuant to KRS 403.250(2), “[u]nless otherwise agreed in writing or
expressly provided in the decree, the obligation to pay future maintenance is
terminated upon . . . the remarriage of the party receiving maintenance.” In the
present case, the parties’ agreement and the divorce decree were silent concerning
the effect that the wife’s remarriage would have on the husband’s maintenance
payment obligation. Therefore, when the wife remarried, the husband’s obligation
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to make future maintenance payments, in the form of mortgage payments,
terminated. See Messer v. Messer, 134 S.W.3d 570, 573-74 (Ky. 2004).
The parties agreed that the mortgage payments would qualify as
maintenance, rather than as some other form of marital debt. In fact, the wife, in
her own affidavit that was filed in support of her motion for contempt, specifically
attested that the mortgage payments were “in the form of maintenance.” Thus,
because the payments were maintenance, the husband was obligated to make the
payments that accrued before the wife remarried. He failed to make all such
payments, and the family court properly ordered him to pay the mortgage
payments that accrued prior to the wife’s remarriage. The family court also
properly held that any mortgage payments owed from the months following the
wife’s remarriage were her responsibility. Consequently, because the parties
agreed that the mortgage payments constituted maintenance, the wife’s claim that
the family court erred when it failed to hold a hearing to determine the reallocation
of marital debts following both parties’ bankruptcies lacks merit. No hearing was
necessary because the mortgage payments were not classified as “marital debts,”
but were explicitly classified by the parties’ agreement as maintenance.
Accordingly, the order of the Kenton Family Court is affirmed.
GUIDUGLI, SENIOR JUDGE CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE
OPINION.
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CAPERTON, JUDGE, CONCURRING: I write separately to
emphasize that my decision to concur is based upon the arguments presented by
the parties. I hasten to add that no argument was made to our Court under Dame v.
Dame, 628 S.W.2d 625 (Ky.1982), Cf. Messer v. Messer, 134 S.W.3d 570
(Ky.2004).
The case before us presents an agreement between the parties that
Appellee “as maintenance to the Wife, shall pay off the present mortgage on the
residence...”. Certainly such a sum is easily determinable and, in fact, was found
by the trial court to be a lump sum award. As such, it would not be modifiable.
See Dame.
The good graces of a future ex-spouse allowing the Appellee, at his
option, to pay off the mortgage immediately or make payments (bearing interest on
the amount of the mortgage, again easily determinable), doesn’t make a lump sum
indeterminable. While the provisions continued and addressed the consequences
of late payments and fees if the mortgage payments were not made timely, this
does not alter the initial amount of the award, i.e., the amount of the mortgage.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Stuart P. Brown
Covington, Kentucky
Donald A. Bollman
Walton, Kentucky
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