Fischer v. Fischer

Cite as 2015 Ark. App. 116

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-692

MICHAEL FISCHER Opinion Delivered February 25, 2015
APPELLANT
APPEAL FROM THE SALINE COUNTY
V. CIRCUIT COURT
[NO. 63DR-10-335-4]

MELANIE FISCHER HONORABLE ROBERT HERZFELD,
APPELLEE JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

This is an appeal from an order in which the Saline County Circuit Court found that,

because the parties’ agreement for their minor children’s parochial-school education was an

independent contract separate from child support, the court had no jurisdiction to modify the

payments. On appeal, Michael Fischer argues that payments for education are more closely

related to an award of support than to a settlement of property rights or alimony, and

therefore the circuit court had jurisdiction to modify those expenses. Based on the facts of the

instant case, we disagree with Michael’s argument and affirm the trial court.

Melanie and Michael Fischer were married on October 25, 1997, and their divorce

decree was entered of record on May 25, 2011. In the twenty-four page decree, which

contained numerous category headings, the parties included a heading titled “Primary

Education (K-12th Grade)” in which Michael agreed to be solely responsible for all tuition

and books related to all three of their minor children’s primary education at Immaculate
Cite as 2015 Ark. App. 116

Conception School (IC) for kindergarten through eighth grade, and then Mount St. Mary

Academy (MSM) for ninth through twelfth grade.

Paragraph 4 of the decree states: “The parties have executed a written Property

Settlement Agreement for providing for the disposition of their marital property and

disposition of their financial affairs. The parties have requested that their Agreement be

incorporated into this Decree. The Agreement executed by the parties is set forth verbatim

as follows,” and then it sets out every item under the main heading “Custody, Support, and

Property Settlement Agreement.” The decree further includes each and every item that the

parties agreed to under separate headings such as “Real Property,” “Vehicles,” “Accounts

and Funds,” “Personal Property,” “Debts,” “Alimony,” “Child Custody,” “Child Support,”

“Insurance,” “Taxes,”“Primary Education (K-12th Grade),” etc.

On January 3, 2014, Melanie filed a motion for contempt after receiving notification

that Michael would no longer be making tuition payments at either parochial school. The

next day, Michael filed a motion to modify the decree, arguing that his child-support

obligation should be decreased due to lower earnings and that the children should be allowed

to attend public school. On March 5, 2014, Melanie filed a motion for partial summary

judgment, which the court granted on May 20, 2014. The court found that the school

payments were contractual between the parties and therefore not modifiable; that there had

been a change in Michael Fischer’s income and reduced his bi-weekly child support to

$1526; that Michael was to reimburse Melanie for tuition she had paid at a bi-weekly rate

of $194.53; and that Michael had the ultimate decision-making power regarding the

children’s medical issues. From that order, this appeal follows.
Cite as 2015 Ark. App. 116

On appeal, Michael contends that, because the agreement to pay the children’s

educational expenses is more closely related to child support than to property settlement or

alimony, the court erred in finding it did not have jurisdiction to modify the payments.

Melanie argues that the agreement was incorporated into the decree and is a valid,

independent contract, which, under well-settled Arkansas law, is enforceable but not

modifiable by the trial court.

This court reviews the trial court’s conclusion of law de novo. Houston v. Houston, 67

Ark. App. 286, 999 S.W.2d 204 (1999). Courts always retain jurisdiction to modify child-

support issues, even if the parties previously agreed upon those issues. Brown v. Brown, 76

Ark. App. 494, 68 S.W.3d 316 (2002). However, when parties enter voluntarily into an

independent agreement that is incorporated into a decree of divorce, it cannot be

subsequently modified by the court. Law v. Law, 248 Ark. 894, 897, 455 S.W.2d 854, 856

(1970). When a contract is unambiguous, its construction is a question of law for the court

and the intent of the parties is not relevant. Kennedy v. Kennedy, 53 Ark. App. 22, 918

S.W.2d 197 (1996). Here, the parties were represented by able counsel and entered into the

contract voluntarily, so it must be enforced. Furthermore, this court has long held that an

independent property-settlement agreement, if approved by the court and incorporated into

the decree, may not be subsequently modified by the court. Jones v. Jones, 26 Ark. App. 1,

4, 759 S.W.2d 42, 44 (1988). Such is the case here.

Although the court may modify a child-support obligation after the moving party

shows a material change of circumstances, we agree with the trial court that the separate

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agreement—in this case for the husband to pay for K-12 parochial-school tuition and

books—is not part of the child-support obligation and thereby is not modifiable.

Arkansas Code Annotated section 9-12-312(3)(A)–(C) (2013) provides:

In determining a reasonable amount of support, initially or upon review to be paid
by the noncustodial parent, the court shall refer to the most recent revision of the
family support chart. It shall be a rebuttable presumption for the award of child
support that the amount contained in the family support chart is the correct amount
of child support to be awarded. Only upon a written finding or specific finding on the
record that the application of the support chart would be unjust or inappropriate, as
determined under established criteria set forth in the family support chart, shall the
presumption be rebutted.

A trial court may deviate from the chart amount if it exceeds or fails to meet the needs

of the children. Ceola v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003). Administrative

Order No. 10(V) sets forth the following factors to be considered when deviating from the

amount set by the chart: food, shelter and utilities, clothing, medical expenses, educational

expenses, dental expenses, child care (including nursery, baby sitting, day care or other

expenses for supervision of children necessary for the custodial parent to work), accustomed

standard of living, recreation, insurance, transportation expenses, and other income or assets

available to support the child from whatever source.

While Administrative Order No. 10 does list educational expenses as one of the

factors to be considered when deviating from the chart’s set amount, in the instant case, there

is no direct language linking the parochial-school tuition to child support. In setting the

child support, the trial court did not deviate from the chart amount because of the tuition

payments. Under the heading “Child Support” in the divorce decree, it specifically states

that the husband shall pay child support in the amount of $1703 bi-weekly. However, it

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further states:

So long as Husband is paying the house payment as set out herein the amount of the
house payment will be considered child support and not in addition to child support.
Upon the home being sold and the mortgages paid in full at closing, Husband’s child
support obligation as set out herein shall commence and be payable to Wife for the
benefit of the children.

This is direct language linking the mortgage payments to child support in the

decree—both in the child-support section and in the real-property section. Conversely,

there is no language in either the child-support section or the primary-education section that

links the tuition payments to child support. Since the parties included the language about the

mortgage payments in lieu of child support, they and their respective counsel were clearly

aware that it could have been included. Michael could have petitioned the court to deviate

from the set chart amount for support if he wanted to have the educational expenses count

as part of his child-support obligation.

Child support is defined as “only those support obligations that are contained in a

decree or order of the circuit court which provides for the payment of money for the support

and care of any child or children.” Ark. Code Ann. § 11-9-110(g) (Repl. 2002). The tuition

payments in this case do not “support” or “care” for the children because Michael voluntarily

agreed to pay the tuition in addition to his regular bi-weekly child-support payment which

was based on his income when applied to the child-support chart. Michael did not seek a

deviation from the chart or an offset of other financial obligations because of his agreement

to pay the tuition in full. Further, the language throughout the divorce decree indicates that

the tuition is separate and apart from his child-support obligation. There is no link between

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the child support and the tuition payments.

If Michael wished for his tuition payments to be counted toward his child support,

he could have bargained to do so just as he presumably did with the mortgage payment.

There is no language in the parties’ agreement that payments of the tuition and books at

parochial school for the three minor children were made in lieu of Michael’s child-support

obligation or were made in order for the court to deviate from the chart-based amount. As

such, we must affirm the lower court in its decision that, as a matter of law, it did not have

jurisdiction to modify the separate agreement that Michael would be responsible for payment

of parochial-school tuition and books for his three children from kindergarten through

twelfth grade.

We note that this issue presents a case-by-case determination, and under other

circumstances, private-school tuition could be a factor for the lower court to consider when

modifying child support. However, given the facts of this case and the issue at hand, this is

a completely separate and independent agreement made by the parties, incorporated into the

decree and signed by both parties. Just as this court held in Jones, an independent property-

settlement agreement, if approved by the court and incorporated into the decree, cannot be

subsequently modified by the court. Here, the trial court held that there was an independent

property-settlement agreement, citing the separate headings and the lack of language tying

the tuition to child support. The trial court found that the tuition payments were in addition

to the normal chart-ordered support and were bargained for, whether wisely or not, by both

parties. The trial court was correct in concluding that it did not have jurisdiction to modify

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the provision, and therefore, we affirm.

Affirmed.

HIXSON and HOOFMAN , JJ., agree.

Sherry Burnett; and Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for

appellant.

Kimberly Eden, for appellee.

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