In re Marriage of Williamson

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NOT DESIGNATED FOR PUBLICATION

No. 115,518

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of:

MARCIA WILLIAMSON,
Appellee,

and

JOHN WILLIAMSON,
Appellant.

MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed December 23,
2016. Affirmed.

Robert E. Myers, of Columbus, for appellant.

No appearance by appellee.

Before BRUNS, P.J., GREEN, J., and WILLIAM S. WOOLLEY, District Judge, assigned.

Per Curiam: John Williamson entered into a divorce property settlement
agreement with Marcia Williamson, part of which included an agreement to pay an equal
share of college expenses for the two children of the marriage. John appeals the district
court's holding that the court did not have jurisdiction to modify the education expense
agreement after one of the children had turned 18. In addition, John contends that the
district court should have determined that the education expense agreement was
unconscionable and ambiguous and, therefore, the district court should have held that the
education expense agreement was unenforceable.
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The district court correctly determined that the court did not have jurisdiction to
modify the education expense agreement after the child reached the age of majority. The
issue of the agreement's enforceability was not raised in John's motion to modify. Thus,
we affirm.

FACTS AND PROCEEDINGS

On May 25, 2012, John and Marcia were divorced, reserving the issues such as
child support and parenting time for a later date. On July 31, 2012, the parties entered a
property settlement agreement which was approved by the court and incorporated into the
divorce decree. The relevant provision of the property settlement agreement is as follows:

"The parties agree to equally share all college or post-high school education
expenses which include, but are not limited to, tuition, books, room and board, and
school fees after all grants and scholarships have been applied for and received. The
parties will equally financially support both children during their attendance at any
college, university, or post-high school education program."

More than 2 years later, in November 2014, Marcia filed a motion for contempt in
the divorce case alleging that John had failed to pay his share of the college expenses for
one of the children. Their son was 19 and had to withdraw from the University of Kansas
for health reasons. As a result, their son was required to reimburse the university for a
Pell Grant. Marcia sought to hold John in contempt for John's failure to pay his share to
the university, $715.50 plus a $200 late fee. John responded with a motion to modify
sharing of expenses, alleging a material change in circumstances. John's stated reasons in
the motion were that he could no longer agree to share the college expenses due to a
material change of circumstances related to John's financial resources.

The district court held a hearing on May 26, 2015, on John's motion to modify
sharing of expenses. John testified at the hearing that at the time he had agreed to the
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property settlement agreement, he had expected his son to receive a "full ride"
scholarship at a top college. John thought the amount he would have to pay pursuant to
the agreement would be minimal. In addition, John did not anticipate he would have to
pay for college expenses if a child dropped out of college, which was the case with his
son. Finally, John testified that his income was greater now than when he signed the
agreement.

At the May 26, 2015, hearing on John's motion to modify, the district court
commented about a July 31, 2012, hearing at which the court approved the property
settlement agreement. In its comments, the court recalled that there was testimony
presented at the motion to approve the July 31, 2012, property settlement agreement.
However, the district court judge, in his ruling on John's motion to modify, noted that in
looking back at the hearing to approve the settlement agreement, the agreement could be
read to mean that it provided that John might have to pay his share of tuition for Harvard
or MIT and that there is a big difference between tuition at Harvard, MIT, and Kansas
state universities. Because of this, the district court commented that the court probably
should not have approved the agreement because it was too open-ended. The court further
commented that in July 2012, it would have found that that it was not reasonable and not
fair.

However, the district court denied John's motion to modify due to lack of
jurisdiction, citing Morrison v. Morrison, 14 Kan. App. 2d 56, 60-61, 781 P.2d 745
(1989) (holding "where the child support obligations of a parent are extended past the age
of majority by an agreement incorporated into the decree of divorce, the trial court has no
jurisdiction to modify the periodic support payments after the child has attained the age
of 18").

On October 9, 2015, the district court held a hearing on Marcia's contempt motion.
In its opinion denying the motion for contempt, the court stated: "However, the Court
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finds that there was enough confusion regarding the educational expenses and who owed
who what, and construing the issue of contempt strictly against [Marcia], this Court
cannot conclude that [John's] failure to pay the above-referenced indebtedness was
deliberate and willful, and the Court finds, therefore, that [John] is not in indirect
contempt."

ANALYSIS

Jurisdiction to modify an agreement to provide for a child's post-majority education
expenses

On appeal, John contends that the district court erred when the court held that the
district court does not have jurisdiction, after a child attains the age of 18, to modify an
open-ended agreement that provides for payment of all college, university, or post high
school education expenses.

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015).

In this case, the district court denied the motion to modify, citing Morrison, 14
Kan. App. 2d 56. In Morrison, the father agreed in a child support order with the mother
to pay $250 a month for each of their children until the children reached the age of 22, as
long as the children were "pursuing a formal education at a full-time accredited
educational institution." 14 Kan. App. 2d at 56. The mother requested an increase in child
support for the youngest child, who was 18 years old but had not yet completed her junior
year of high school.

This court held that under K.S.A. 1988 Supp. 60-1610(a)(1), "where the child
support obligations of a parent are extended past the age of majority by an agreement
incorporated into the decree of divorce, the district court has no jurisdiction to modify the
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periodic support payments after the child has attained the age of 18." 14 Kan. App. 2d at
60-61. The Morrison court was construing K.S.A. 1988 Supp. 60-1610, which is now
codified without substantial modification at K.S.A. 2015 Supp. 23-3001. 14 Kan. App. 2d
at 57. The court in Morrison was considering a motion to modify periodic child support
payments, while in this case, we are considering a motion to modify an agreement for
education expenses. In both cases, the motion to modify was made after the child turned
18.

John contends that there is a distinction in the statute between child support and
education expenses for purposes of a motion to modify. He argues that child support is
established by periodic payments, whereas the educational expenses could involve both
periodic payments, such as rent, and nonperiodic payments such as tuition, dormitory,
books, and fees. John further argues that the language of K.S.A. 2015 Supp. 23-
3001(b)(1) only provides for an agreement to pay "support" beyond the age of 18. John
argues "support" must mean "child support" and does not include "education expenses."
If so, he contends that the statute does not limit a modification of an education expense
agreement when a child reaches majority. As such, John contends that under K.S.A. 2015
Supp. 23-3001, the court has jurisdiction to modify an education expense agreement after
a child reaches majority.

The issue is a matter of statutory interpretation. An appellate court must first
attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meaning. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90
(2014). The legal effect of a written instrument and the consideration of statutory
provisions present questions of law that are subject to unlimited review by this court.
Dougan v. Rossville Drainage Dist., 270 Kan. 468, 486, 15 P.3d 338 (2000); Babe
Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).

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K.S.A. 2015 Supp. 23-3001(a) provides: "In any action under article 27 of chapter
23 of the Kansas Statutes Annotated, and amendments thereto, the court shall make
provisions for the support and education of the minor children." (Emphasis added.)
K.S.A. 2015 Supp. 23-3001(b)(1) further provides:

"Regardless of the type of custodial arrangement ordered by the court, the court
may order the child support and education expenses to be paid by either or both parents
for any child less than 18 years of age, at which age the support shall terminate unless:
"(1) The parent or parents agree, by written agreement approved by the court, to
pay support beyond the time the child reaches 18 years of age." (Emphasis added.)

The legislature chose to use the terms "support," "education," and "child support"
distinctly. It is presumed that the legislature intended a different meaning when it used
different language in the same connection within a statute. Boatright v. Kansas Racing
Comm'n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). The language of the statute is
clear: (1) Unless otherwise provided by statute, support shall terminate when a child
reaches 18 years of age, and (2) parents may agree, in writing, to pay support beyond the
time the child reaches 18. If the legislature had intended the term "support" in this section
to mean only "child support" then the legislature could have so provided.

Thus, the term "support" as used in K.S.A. 2015 Supp. 23-3001(b) means both
child support expenses and education expenses. Therefore, once a child reaches the age
of 18, a district court's order to pay education expenses shall terminate, unless the parents
have a written agreement to the contrary. This holding is in accord with the general
legislative intent of the statute, which is to get the child through high school. Once the
child graduates and has reached majority, that goal has been met. See 2 Elrod, Kansas
Law & Practice, Kansas Family Law § 14:27 (2015).

In addition, Kansas courts have issued similar holdings regarding education
expenses, examining prior versions of Kansas statutes providing for the support of minor
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children. See Herzmark v. Herzmark, 199 Kan. 48, 56-57, 427 P.2d 465 (1967) (court
may approve an order directing father to pay into an educational fund as long as father is
not ordered to make payments after child reaches majority); Allison v. Allison, 188 Kan.
593, Syl. ¶ 5, 363 P.2d 795 (1961) (The statutory authority that allows the court to order
payments into an educational trust fund limited that power to the child's minority.);
Ferguson v. Ferguson, 6 Kan. App. 2d 287, 290-91, 628 P.2d 234 (1981) (If the
legislature had intended to extend parental duties to require parents to provide for
education for their children who have attained majority, it would have done so.).

The "support" that this court considered in Morrison was child support. In
Morrison, this court held that when the child support obligations of a parent are extended
past the age of majority by an agreement incorporated into the decree of divorce, the trial
court has no jurisdiction to modify the agreement to make periodic child support
payments after the child has attained the age of 18. 14 Kan. App. 2d at 60-61. The
language of the statute in Morrison is substantially similar to K.S.A. 2015 Supp. 23-3001,
and the interpretation we used in Morrison would not differ under the facts in this case.

Thus, where the education expense obligations of a parent are extended past the
age of majority by an agreement incorporated into the decree of divorce, the trial court
has no jurisdiction, once the child has reached majority, to modify the agreement to make
education expense payments under K.S.A. 2015 Supp. 23-3001. The exception would be
when the parties reserved the power to make a subsequent modification in the agreement
or when the parties mutually agreed to a subsequent modification. See In re Marriage of
Patterson, 22 Kan. App. 2d 522, 531, 920 P.2d 450 (1996); In re Marriage of Hedrick,
21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996) (modification of maintenance
agreement); Morrison, 14 Kan. App. 2d. at 61.

In this case, the court found that the education expense agreement did not include
any provision for modification and John has not argued that there was any evidence
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presented to the contrary. Thus, the district court did not err in ruling that it did not have
jurisdiction to modify the education expense agreement.
Enforceability of the education expense agreement

John appeals only the district court's ruling on his motion to modify the education
expense agreement. John contends that the district court should have determined that the
education expense agreement is unenforceable, asserting the agreement is ambiguous or
unconscionable. Whether the agreement may be enforced is a different issue than whether
the court has jurisdiction to modify an agreement by a motion filed in the divorce.

The district court has jurisdiction to consider enforceability of any agreement. A
separation agreement "is subject to the same rules of law applicable to other contracts."
Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972). "The fact that a
separation agreement is incorporated into a divorce decree does not extinguish those
contractual aspects." In re Marriage of Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25
(2008).

When the district court considered John's motion to modify the education expense
agreement, it was not asked to address the agreement's contract enforceability issues.
Procedurally, the motion to modify was filed in the divorce case and was filed to be heard
separately from any answer to the contempt citation.

John's motion to modify the education expense agreement was based upon the
allegations that there was a material change of circumstances and that John no longer
agreed to the education expense agreement. John's motion to modify alleged: "[T]here
has been a material change of circumstances to modify this agreement that includes, but
is not limited to the fact that [John] no longer has the financial resources to share in
college expenses beyond the majority of the minor children." Paragraph 3 of the amended
motion further alleged: "As a result of the change in financial circumstances of [John],
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he no longer agrees to continue to equally share in unlimited college education
expenses." (Emphasis added.).

Although the court commented in the court's ruling on John's amended motion to
modify regarding the problems of the court having given approval to the education
expense agreement, John's motion did not allege the agreement was unenforceable on the
grounds of unreasonableness, ambiguity, or unconscionability of the education expense
agreement. The stated purpose of John's motion was to modify the agreement, not have it
determined to be unenforceable. As such, it was proper for the district court to consider
only the court's jurisdiction to modify. A new legal theory may not be asserted for the
first time on appeal. Wood v. Groh, 269 Kan. 420, 433-34, 7 P.3d 1163 (2000).

In addition, John's motion to modify was not filed as a motion for relief from
judgment or order brought pursuant to K.S.A. 2015 Supp. 60-260(b). A court is not
deprived of authority to grant relief from judgment merely because the judgment is a
divorce decree incorporating a property settlement agreement. Richardson v. Richardson,
3 Kan. App. 2d 610, 612, 599 P.2d 320 (1979); In re Marriage of Guthrie-Craig, No.
113,410, 2016 WL 3128692, at *4 (Kan. App. 2016) (unpublished opinion) (district court
has authority, pursuant to K.S.A. 60-260[b], to grant relief from a post-minority child
support agreement). However, it is important to note that if John had filed his motion
under K.S.A. 2015 Supp. 60-260(b), the district court would have been required to
consider the timeliness of the motion made over 2 years after the court's initial order. See
K.S.A. 2015 Supp. 60-260(c).

Finally, enforceability was not raised nor the reason for the court's decision on
Marcia's contempt motion. John was successful in defending against Marcia's contempt
motion, which was heard subsequent to the hearing on the amended motion to modify.
The district court did not comment on the issues surrounding the substance of the
agreement, only noting that there was enough confusion surrounding the educational
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expenses and "who owed who what" so that the district court found it could not conclude
that John's failure to pay was deliberate and willful. John has not appealed the district
court's contempt ruling, which was in John's favor. "A party prevailing in the district
court typically cannot appeal some aspect of how a favorable ruling or judgment was
reached." Morgan v. State, No. 109,099, 2014 WL 5609935, at *3 (Kan. App. 2014)
(unpublished opinion); see also Blank v. Chawla, 234 Kan. 975, Syl. ¶ 2, 678 P.2d 162
(1984) (stating that "[a]ppeals are not for the purpose of settling abstract questions,
however interesting or important to the public generally, but only to correct errors
injuriously affecting the appellant").

The enforceability of the education expense agreement was not raised in John's
motion to modify the agreement nor was the issue necessary for the trial court's decision
on John's motion to modify. The decision on the motion to modify is the only order
presented to us on appeal. An order remanding the case that directs the district court to
consider the agreement's enforceability is not warranted.

Affirmed.