Opinion
NO. 2014-CA-001694-MR
02-12-2016
ANGELA CALLOWAY APPELLANT v. DUANE DENSLER, MD APPELLEE
BRIEFS FOR APPELLANT: Angela Calloway, pro se Louisville, Kentucky BRIEF FOR APPELLEE: John H. Helmers, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 13-CI-501878 OPINION
AFFIRMING BEFORE: KRAMER, D. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Angela Calloway appeals from an order of the Jefferson Circuit Court which denied her motion to require Duane Densler to pay for private school for the parties' minor child. We find no error and affirm.
The parties to this case have one minor child together, but have never been married. The minor child has primarily resided with Appellant since his birth in 2003. The parties entered into a mediated agreement in 2011 in which Appellee was to pay Appellant $4,500 a month in child support. The agreement also stated in relevant part:
Appellant and child live in Louisville and Appellee lives in Pikeville. Appellant has her PhD in nursing and Appellee is a neurosurgeon. --------
Dr. Densler shall pay for [Child's] expenses to attend DePaul School for the academic year 2011-2012 including all expenses and extracurricular fees. Dr. Densler[,] in conjunction with the staff of the DePaul School, shall decide if [Child] is to continue at the DePaul School on a year to year basis. Dr. Densler shall pay all expenses as set forth above if he decides to keep [Child] at the DePaul School.
The DePaul School is a private school for children with learning disabilities or difficulties. The parties' child has been diagnosed with ADHD. Appellee paid the school tuition for the 2011-2012 and 2012-2013 school years. Appellee decided to stop making the payments for private school thereafter because he believed the child would be better off at a public school.
Appellant filed a contempt motion in April of 2013. She argued that Appellee violated the mediated agreement because he stopped paying tuition unilaterally and did not make the decision in conjunction with the DePaul School staff. Other motions were filed and arguments made by both parties; however, the issue of private school tuition is the only one before us.
A trial was held on July 10, 2014. As to the private school tuition issue, the trial court found that Appellee did not violate the agreement. The court interpreted the agreement and found that it required Appellee to confer with the staff of the DePaul School, but it was ultimately his sole decision as to whether or not to continue paying tuition. The court also found that, while it can force a parent to pay for private school in some circumstances, it could not do so in this case. This appeal followed.
"It is well established that construction and interpretation of a written instrument are questions of law for the court. We review questions of law de novo and, thus, without deference to the interpretation afforded by the circuit court." Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998) (citations omitted).
In all actions tried upon the facts without a jury . . . the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.Kentucky Rules of Civil Procedure (CR) Rule 52.01.
In the case at hand, the trial court found that the agreement required Appellee to consult with the staff of the school before deciding whether or not the child should continue attending the school. The court also found that the phrases "Dr. Densler . . . shall decide" and "if he decides" allow Appellee to be the sole decision maker. We agree with this interpretation. Additionally, Tony Kemper, the head of the DePaul School, testified that he had a parent-teacher conference with Appellee. Appellee also testified that he spoke with the child's teachers on the phone. This evidence showed that Appellee made his decision in conjunction with the DePaul staff.
The trial court also found that it could not force Appellee to pay for private school under the facts of this case. Pursuant to Kentucky Revised Statutes (KRS) 403.211(3)(b), a court may deviate from the child support guidelines if a child has extraordinary educational needs. In other words, a trial court may require a parent to pay for private school if the child has extraordinary educational needs. In order for this to occur, the parent seeking funds for extraordinary educational needs must show that public schools are inadequate to provide for the educational needs of the child. Miller v. Miller, 459 S.W.2d 81, 83 (Ky. 1970). In the case at hand, Appellant presented a great deal of evidence that DePaul addresses the child's educational needs, but she did not present any evidence as to the ability of public schools to address those needs. Without this evidence, the trial court correctly found that it could not order Appellee to pay the child's private school tuition.
Both parties presented other arguments in their briefs; however, none of those arguments were preserved for our review.
Based on the foregoing we affirm the judgment of the trial court.
ALL CONCUR. BRIEFS FOR APPELLANT: Angela Calloway, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: John H. Helmers, Jr.
Louisville, Kentucky