Gloverv.Burton

Commonwealth of Kentucky Court of AppealsMar 1, 2019
NO. 2017-CA-002024-MR (Ky. Ct. App. Mar. 1, 2019)

NO. 2017-CA-002024-MR

03-01-2019

CHERYL L. GLOVER APPELLANT v. WAYNE L. BURTON, EXECUTOR OF THE ESTATE OF STACEY BURTON APPELLEE

BRIEF FOR APPELLANT: Patrick T. Flaherty Owensboro, Kentucky BRIEF FOR APPELLEE: John David Meyer Owensboro, Kentucky


NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 17-CI-00576 OPINION
AFFIRMING

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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. COMBS, JUDGE: This case involves the issue of child support in the probate context. Appellant, Cheryl L. Glover (Cheryl), appeals from the trial court's order granting summary judgment in favor of Appellee, Wayne L. Burton, Executor of the Estate of Stacey Burton (the Estate). Finding no error, we affirm.

Stacey is also spelled as "Stacy" in the record below. We shall use "Stacey" in general, because that is the spelling used in the notice of appeal; however, we use the other spelling as it appears in any quoted material.

Cheryl and the decedent, Stacey Burton, had one child together. They never married. In 2004, they entered into a child custody and support settlement agreement in Daviess District Court, Civil Action No. 03-J-00237, which provides in relevant part as follows:

Stacey will pay child support at the rate of $95.00 per calendar week as current child support.... Such payments will be made through the child support division of the Daviess County Attorney's Office .... Such monthly child support will be subject to adjustment from time to time in accordance with changing economic circumstances of the parties and other factors, in the usual manner under Kentucky law.
...
The parties have agreed that Stacey, upon death, shall be conclusively deemed to have retired, in full, any child support obligation he would otherwise have with respect to [the child] by the payment of $100,000.00 to Cheryl (or any other then custodian of [the child]) as a single sum payment. Stacey will be permitted to satisfy his obligation, upon death, herein through life insurance. Stacey shall provide to Cheryl proof of such insurance on an annual basis. Both parties acknowledge that they are aware that Stacey's obligation, of support with respect to [the child] would not otherwise terminate upon Stacey's death if Stacey died before [the child] attained the age of eighteen (18) years or completed high school (not later than age 19). Cheryl acknowledges that she shall have no legal claim, on her own behalf or with respect to [the

child], with respect to child support or otherwise as long as such insurance is provided for the benefit of Cheryl and [the child]. Cheryl shall release any claim against Stacey's estate in exchange for such payment....


The agreement reflected that it was ordered "approved and entered as an enforceable judgment" by the Daviess District Court on May 10, 2004.

Stacey died on January 12, 2017. The child was fourteen (14) years of age at that time. On April 3, 2017, Cheryl filed a verification of claim against Stacey's Estate. On April 17, 2017, the Executor filed a notice disallowing the claim.

On June 13, 2017, Cheryl filed a complaint in Daviess Circuit Court which recited that "[a]t the time of his death, Stacey Burton, had apparently not secured life insurance, per the agreement in the amount of $100,000." Furthermore, Cheryl acknowledged that "pursuant to the agreement, that Stacey was not required to secure the insurance policy." Nevertheless, Cheryl averred that "if the child support obligation was not secured through ... insurance, that payment of $100,000.00 to Cheryl, in single sum payment is now due and owing."

On June 20, 2017, the Estate filed a motion to dismiss pursuant to CR 12.02(f). By order entered July 24, 2017, the trial court elected to treat the Estate's motion to dismiss as a motion for summary judgment under CR 56 and directed the parties to file briefs and appropriate evidence. The court heard arguments on November 8, 2017.

Kentucky Rules of Civil Procedure.

On November 20, 2017, the court entered an order granting summary judgment for the Estate as follows in relevant part:

The parties acknowledge that Stacey's support obligation would not otherwise terminate on Stacey's death before [the child] turned eighteen or completed high school no longer than turning nineteen. Stacy continued to pay child support to the Plaintiff until his death and the estate will continue to pay that obligation as the law requires. The Agreement was made and entered by the District Court in May of 2004. There is no proof that payments were not made monthly as agreed until Stacy's death in January, 2017.

Further, in the Agreement, the Plaintiff agreed that she would have no claim against Stacy's estate so long as life insurance was provided, and that the Plaintiff would release any claim against Stacey's estate in exchange for the payment of $100,000.

Stacy died testate on January 12, 2017. At the time of his death, Stacey had not secured any life insurance on behalf of [the child] or the Plaintiff....
...
The parties agree there is no factual dispute [sic] thus this matter turns on interpretation of the Agreement. "An agreement to settle legal claims is essentially a contract subject to the rules of contract interpretation." Cantrell Supply, [Inc. v.] Liberty Mutual Insurance Co., 94 S.W.3d [381], 385 (Ky. App. 2002). Interpretation of an agreement is a matter of law. Morganfield [] National Bank v. Damien Elder & Sons, 836 S.W.2d 893, 896 (Ky. 1992).


The court found that the language of the agreement was unambiguous and that, therefore, it was unnecessary to resort to extrinsic evidence:

The clear language of the Agreement indicates that the option to pay $100,000 to retire any child support obligation or to maintain regular child support payments lies with the [Estate]. The word "obligation" in the sentence "Stacey will be permitted to satisfy his obligation, upon death, herein through life insurance" refers clearly to Stacey's general obligation to pay child support rather than a specific obligation to pay $100,000. Additionally, the agreement provides that the Plaintiff "shall release any claim against Stacy's estate in exchange for such payment" indicates to the Court that the estate retains the right to exercise an option to pay $100,000 to retire any child support, or to continue with regular payments. Thus, it is clear that the operative part of the Agreement existed to limit the estate's exposure to child support costs in the event of Stacy's death, and that the option to either pay $100,000 to retire any child support debt or make regular child support payment lies with the estate. The sum selected by the parties at the time the agreement was made --$100,000—exceeds the total obligation of child support throughout the child's maturity if the weekly amount remains the same.

The estate of Stacy Burton shall continue to pay the monthly obligation or per K.R.S.[] 406.041,[] commute the entire remaining obligation to a lump sum.


Kentucky Revised Statutes (hereinafter KRS).

KRS 406.041 provides as follows: "[t]he obligation of the estate of the father for liabilities under this chapter shall not be terminated by the death of the father obligated to support the child. If a father obligated to support the child dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances." We also note KRS 403.213(3), which provides in relevant part that "[p]rovisions for the support of the child shall not be terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances."

On December 18, 2017, Cheryl filed a notice of appeal. On appeal from an order granting summary judgment, we must determine whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Because summary judgment involves only legal questions, our review is de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).

Cheryl's argument on appeal is somewhat contradictory. At page 6 of her brief under the caption, "Argument," she states that the "Trial Court failed to make Findings of Fact or hear evidence to support Stacey Burton's intention stated in his Will regarding and in connection with the Parties [sic] Child Custody and Support Settlement Agreement." However, at page 7 of her brief, Cheryl states that:

reading the Agreement, as a whole, with the additional provisions to be noted below, indicates that there is no ambiguity and the interpretation of the Agreement, especially, when read in connection with the Decedent's Will ... that states upon his death, his Estate is to pay to Cheryl $100,000.00.


We note that "findings of fact are not necessary in summary judgments[.]" Pence Mortg. Co. v. Stokes, 559 S.W.2d 500, 504 (Ky. App. 1977). Moreover, "[a]bsent an ambiguity in the contract, the parties' intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence." Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). That is exactly what the trial court did in the case before us. The trial court properly found that "the language of the Agreement is unambiguous, and therefore [it] has no need to consult any extrinsic evidence." The court construed the word "obligation" in the sentence as follows: "Stacey will be permitted to satisfy his obligation, upon death, herein through life insurance" as referring to Stacey's general obligation to pay child support. The court explained that the "clear language of the Agreement" gave the Estate the option either to pay $100,000.00 to retire any child support obligation or to maintain regular child support payments. We conclude that the court correctly construed the language of the agreement as creating such an option.

At page 4 of the Agreement. --------

We affirm.

ALL CONCUR. BRIEF FOR APPELLANT: Patrick T. Flaherty
Owensboro, Kentucky BRIEF FOR APPELLEE: John David Meyer
Owensboro, Kentucky