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Fischer v. Fischer

Court of Appeals of Arkansas, Division II

February 25, 2015

MICHAEL FISCHER, APPELLANT
v.
MELANIE FISCHER, APPELLEE

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63DR-10-335-4. HONORABLE ROBERT HERZFELD, JUDGE.

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

Kimberly Eden, for appellee.

RAYMOND R. ABRAMSON, Judge. HIXSON and HOOFMAN, JJ., agree.

OPINION

Page 780

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 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

Page 781

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.

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 ...


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