2007 VT 128


O’Connell-Starkey
v. Starkey (2005-166)
 
2007
VT 128
 
[Filed
30-Nov-2007]
 
NOTICE: 
This opinion is subject to motions for reargument
under V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports.  Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier,
 Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.
 
 
                                                                   
2007 VT 128
 
                                                                  
No. 2005-166
 
 
Dorothea E.
O’Connell-Starkey                                                     
Supreme Court
 
On
Appeal from
    
v.                                                                                                
Chittenden Family Court
 
Gorden S.
Starkey                                                                          
December Term, 2006
 
 
Ben W. Joseph,
J.
 
Mark A. Kaplan
of Jarvis and Kaplan, Burlington,
for Plaintiff-Appellee.
 
Marsha Smith Meekins of Roesler, Whittlesey, Meekins & Amidon, Burlington,
for 
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund
and Burgess, JJ.
 
¶  1.          
SKOGLUND, J.  Defendant Gorden
Starkey appeals from a family court order requiring him to pay college tuition
for Kristen O’Connell-Starkey.  In so requiring, the family court
concluded that the latest amended divorce order was not ambiguous and found
that, although it left the issue of college tuition open for contest, defendant
had never contested it.  Therefore, defendant remained obligated under a
previous agreement to pay 60% of the child’s college tuition.  We affirm.
 
¶  2.          
The following facts are unconstested.  On June 5, 1985, plaintiff gave birth
to a child while she and defendant were living together.  On November 28,
1986, the parties married.  In October 1993, when the child was eight
years old, plaintiff filed for divorce.  In November 1993, the parties
stipulated to a temporary child support order in which they agreed to share
legal and physical parental rights and responsibilities.  That order
established that the child was a child of the marriage.  On June 30, 1994,
the family court entered a final order based on the parties’ stipulation. 
The final order maintained the provisions of the temporary order.  
¶  3.          
In April 1996, plaintiff
moved to Virginia
and, pursuant to provisions made in the final order, defendant took sole
physical custody of the child.  Plaintiff retained shared legal custody
and visitation with the child during the summer.   In December 1997,
defendant moved to modify the child support order, seeking child support from
plaintiff because of her move.  The parties began negotiating an agreement
regarding child support.  From a DNA test dated March 9, 1998, defendant
learned that there was a 99% probability that he was not the child’s
father.  Nevertheless, on March 25, 1998, the family court approved a
stipulated settlement of defendant’s child support motion.  The settlement
agreement contained no mention of the DNA test.  The amended order awarded
child support to defendant, reduced plaintiff’s share of the child’s medical
expenses, required both parties to maintain life insurance policies for the
child’s benefit, and required defendant to pay 60% and plaintiff to pay 40% of
the child’s college tuition, room, board, and fees. 
 
¶  4.          
Approximately three months
later, in June 1998, plaintiff moved to modify the child support order. 
She requested sole legal and physical custody so that the child could move to Virginia and attend
school there.  Defendant opposed the motion, arguing that there had been
no real, substantial and unanticipated change in circumstances.  He
further argued that the change was not in the child’s best interests.  On
September 2, 1998, the family court entered a temporary order, again based upon
a stipulation of the parties, in which the parties continued their shared legal
rights and responsibilities, but agreed that plaintiff would have sole physical
rights and responsibilities for the  1998-1999
school year.  The order relieved plaintiff of her child support
obligation, and provided that defendant would not pay child support for the
next year in exchange for his not seeking an alleged child support
arrearage.  It affirmed all other provisions of the previous orders. 
During the rest of 1998 and most of 1999, the parties attempted to negotiate a
final agreement to resolve plaintiff’s June 1998 motion to modify parental
rights and responsibilities.  On December 1, 1999, the family court
approved a negotiated agreement that purported to do so and issued the
requested amended order.  The agreement contains three substantive
paragraphs that read as follows:
  1.  The final order dated
June 30, 1994 in the above entitled matter shall be further amended only by
striking in its entirety paragraph 2 of said order.  Only Paragraphs 1, 6
and 7 of the stipulated modification order dated March 24, 1998 shall be
vacated and of no further force and effect.  The intent of the parties
here is to amend the final order dated June 30, 1994 as amended to reflect the
fact that the Defendant Gorden Seth Starkey is not
the biological father of the parties’ minor child based upon a DNA parentage
test report dated March 9, 1998 and as a result as of the date of this
stipulation, has no legal or physical rights and responsibilities with respect
to the parties’[] minor child.
 
  2.  The stipulated temporary
order dated September 1, 1998 shall be vacated in its entirety and of no
further force and effect except that Plaintiff shall be entitled to claim the
parties’ minor child as a dependent for income tax purposes on her 1999 tax
return and thereafter. 
 
  3.  The issues of future
child support, health insurance, college expenses, and maintenance of life
insurance, are not waived by either party.
 
 
 
¶  5.          
In December 2003, the child
finished her first semester at the University
 of North Carolina Wilmington. 
In February 2004, plaintiff filed a motion to enforce the March 25, 1998 order. 
She made no mention of the December 1999 agreement.  Plaintiff also sought
a contempt citation against defendant for violating a court order by failing to
pay 60% of the child’s college expenses.  Defendant opposed the motion to
enforce, arguing that the 1999 agreement stripped him of all legal and physical
rights and responsibilities, and therefore, he had no responsibility to
pay.  On June 9, 2004, Judge Keller ruled that the 1999 order was
ambiguous, and he set the matter for a hearing to determine its meaning. The
hearing took place over two days, November 17, 2004 and January 10, 2005,
before Judge Joseph.  On March 22, 2005, Judge Joseph ruled that the 1999
order was unambiguous.  The family court found that the 1999 order struck
only certain paragraphs of the previous agreement and left others in
force.  The court found that the college tuition paragraph was not
stricken.  Further, the family court interpreted the last paragraph of the
1999 order as specifically leaving open for dispute the issues of future child
support, health insurance, college expenses, maintenance, and life
insurance.  Since neither party had moved to modify the March 1998 order
regarding college expenses, the family court found that “the college expenses
provision of the 1998 Amendment is still in effect and the defendant must pay
60% of [the child’s] college expenses.”  The court also granted plaintiff
interest and attorney’s fees.  
¶  6.          
On appeal, defendant raises
three issues.  Defendant contends that the trial court erred in concluding
that the 1999 order was unambiguous.  Defendant also suggests that the
trial court misconstrued the 1999 order, and finally, defendant argues that the
trial court erred in enforcing the March 1998 order against him. 
 
¶  7.          
We first take up defendant’s
claim that the trial court erred in concluding that the 1999 order was
unambiguous.  The trial court reversed its earlier decision on this issue,
stating that the “law of the case” doctrine is a discretionary rule of practice,
not a rule of law, and a trial court has discretion to depart from the
doctrine.  State v. Malshuk,
2004 VT 54, ¶ 7, 177 Vt.
475, 857 A.2d 282 (mem.).  The family
court then determined that the last section of the 1999 order was not ambiguous
when read as part of the whole agreement between the parties.  The court
read the 1999 order as a whole, considering it in light of the other
provisions.  The court particularly emphasized the passage that struck
only paragraphs 1, 6, and 7 of the 1998 order:  
  The college expenses provision is
found in paragraph 3 of the 1998 Amendment; it was not vacated or stricken by
the 1999 Amendment.  There are only three numbered paragraphs in the 1999
Amendment.  Because the Amendment contains provisions which either vacate
or strike provisions from previous orders, the defendant’s argument that the
third paragraph of the 1999 Amendment was intended to vacate the third
paragraph of the 1998 Amendment is just not plausible.  The 1999 Amendment
merely states that issues concerning college expenses and other support items
can be contested in the future.  When considered in the context of the
entire document, there is no ambiguity in the contested paragraph of the 1999
Amendment.  That portion of the 1998 Amendment in which the defendant
agreed to pay 60% of [the child’s] college expenses is still in effect.
 
¶  8.          
“We review de novo the trial
court’s determination as to whether the agreement is ambiguous, as well as its
construction of the terms of the agreement.”  Downtown Barre Dev. v. C & S Wholesale Grocers, Inc., 2004
VT 47, ¶ 8, 177 Vt. 70, 857 A.2d 263.  Ambiguity exists where the disputed
language will allow more than one reasonable interpretation.  Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988). 
In such cases, this Court may consider the circumstances surrounding the making
of the agreement to ascertain the parties’ true intent.  Id. at 578, 556
A.2d at 84.  While we may examine the surrounding circumstances to
determine whether a provision of the agreement is ambiguous, this Court may not
use those circumstances “to vary the terms of an unambiguous writing.”  Kipp
v. Estate of Chips, 169 Vt.
102, 107, 732 A.2d 127, 131 (1999).  “Where the terms of [an
agreement] are plain and unambiguous, they will be given effect and enforced in
accordance with their language.”  KPC Corp. v. Book
Press, Inc., 161 Vt.
145, 150, 636 A.2d 325, 328 (1993).
¶  9.          
In this case, the trial
court correctly concluded that the final paragraph in the 1999 amended order
was not ambiguous.  The issues identified in that paragraph—future child
support, health insurance, college expenses, and maintenance of life
insurance—are discussed in paragraphs 2, 3, 4, and 5 of the 1998 amended
order.  These paragraphs were not disturbed by the 1999 order.  The
final paragraph specifically reserves to each party the right to continue to
litigate those issues, and the language “not waived by either party” puts each
party on notice that he or she might still be called to account for those
provisions.  The disputed language will not allow more than one reasonable
interpretation.  Isbrandtsen, 150 Vt. at 577, 556 A.2d at 83.
¶  10.      
Defendant next argues
that even if the final paragraph of the 1999 order was not ambiguous, the trial
court misconstrued it.  We review the trial court’s construction of the
parties’ agreement de novo.  Four Oaks Conservation
Trust v. Bianco, 2006 VT 6, ¶ 5, 179 Vt. 597, 892 A.2d 258 (mem.).  In interpreting a contract
we seek to effectuate the intent of the parties, Sullivan v. Lochearn, Inc., 143 Vt. 150, 152, 464 A.2d 745, 746
(1983), and “when the language of the contract is clear on its face,
we will assume that the intent of the parties is embedded in its
terms.”  In re Verderber,
173 Vt. 612,
615, 795 A.2d 1157, 1161 (2002) (mem.).  
 
¶  11.      
Here, defendant contends
that the court erred by interpreting the March 1998 and the 1999 agreement and
resulting orders together as one contract.  He argues that nothing in the
1999 order indicates his willingness to pay for college expenses, and
therefore, that the trial court erred by reading the terms of the 1998 order
into the 1999 order.  Defendant argues that the two orders were made in
such different circumstances and contain such different subject matter that the
two cannot be read together to create a consistent whole.  
¶  12.      
We disagree.  The 1999
order carefully left specific portions of the 1998 order in place. 
Specifically, the 1999 order did not disturb: paragraph 2, requiring defendant
to maintain medical insurance for the minor child with each party paying a
portion of uncovered medical expenses; paragraph 3, requiring the parties to
share the cost of college education; paragraph 4, eliminating the requirement
that the parties maintain the child on retirement programs; and paragraph 5,
requiring the parties to maintain life insurance.  That the 1999 order
also stated an understanding that those issues could be revisited by the
parties in the future is perfectly sensible.   Because the 1999 order
specifically vacated portions of the final divorce decree and of the 1998
agreement between the parties, we cannot accept defendant’s suggestion that the
third paragraph was meant to replace or vacate the college expenses provision
in the 1998 order.  The parties clearly demonstrated their ability to
amend those paragraphs that they wanted to amend, and
to affirm those obligations that each wanted the other to uphold. 
¶  13.      
 Defendant correctly
notes that the two orders settled different claims.  The 1998 order
resolved defendant’s motion to modify child support pursuant to 15 V.S.A. §
663.  The 1999 order resolved plaintiff’s motion to modify child support
and parental rights and responsibilities.  Id. § 665.  Despite their differences, both orders
modified the final divorce decree.  For these reasons, we find no error in
the family court’s construction of the 1999 order.
 
¶  14.      
The dissent attempts to
extrapolate from the circumstances of this case support for its decision that
the agreement of the parties is ambiguous.  However, the assumptions made
are incorrect and derive from the dissent’s basic, harsh philosophy. 
Because the parties stipulated that defendant was not the biological father and
that he had no “legal or physical rights and responsibilities with respect to
the parties’ minor child,” the dissent assumes defendant’s concession means
defendant had no intention of remaining a supportive parent in the life of a
child he raised as his own until the age of fourteen.  There is nothing
inconsistent about having no legal rights and responsibilities for a child and
continuing to love and provide for that child.  
¶  15.      
Looking at what it views as
the parties’ circumstances, the dissent concludes that plaintiff’s choice not
to return to the family court for an order of child support “is a clear
indication that she believed she could not obtain child support in light of the
1999 agreement.”  We cannot begin to know the reasons plaintiff did not
seek any action by the court regarding child support.  The fact is, she
did return to court to enforce the agreement for sharing college expenses, in
light of the 1999 agreement.   The dissent’s assumption is incoherent
on this point.    
¶  16.      
Finally, the dissent finds
support for its finding of ambiguity because the 1999 order eliminated the
entire paragraph of the original order establishing shared parental rights and
responsibilities for the minor child, and suggests “the only provision left
giving mother parental rights” is her right to claim the parties’ minor child
as a dependent for income tax purposes.  While the 1999 order did strike
the shared parental rights and responsibility determination, it does not follow
that mother no longer retains those rights.  The stated purpose of the
1999 order amending the 1994 final order is to reflect the fact that defendant
was “not entitled to any legal physical rights and responsibilities of the
parties’ minor child.”  Its purpose was not to remove plaintiff’s rights. 
 
¶  17.      
Defendant also argues that
he cannot be obligated to support the college education of a child to whom he
is not biologically related and for whom he has relinquished all parental
rights and responsibilities.  Specifically, he argues that either a
finding of paternity or a presumption of paternity arising under a final order
of divorce is a necessary predicate to an ex-husband’s obligation to pay child
support.  Defendant concedes that the final divorce decree established
paternity, created a compulsory legal duty to pay child support, and formed the
legal and jurisdictional basis for the 1998 order.  He contends, however,
that the 1999 order, memorializing the fact that “defendant . . . 
is not the biological father of the parties’ minor child” removed the necessary
legal predicate for imposing future child support obligations.  
¶  18.      
This argument overlooks that
fact that the parentage determination in a final divorce decree is not open to
collateral attack in a motion to modify child support.  Godin
v. Godin, 168 Vt.
514, 523-24, 725 A.2d 904, 910 (1998); St. Hilaire
v. DeBlois, 168 Vt.
445, 448, 721 A.2d 133, 135 (1998); Lerman
v. Lerman, 148 Vt. 629, 629, 528 A.2d 1121, 1122 (1987) (mem.).  Instead, the final divorce order establishes
parentage, and unlike parental rights and responsibilities and child support,
the family court does not retain jurisdiction of parentage once the nisi period
has run.  Jones v. Murphy, 172 Vt. 86, 89, 772 A.2d 502, 504 (2001). 
A party wishing to contest parentage after the nisi period must move to amend
the judgment pursuant to Vermont Rule of Civil Procedure 60.  Id.
 
¶  19.      
In Jones v. Murphy,
this Court faced a situation in which the former spouses attempted to undo a
parentage determination by means of a stipulation.  Id. at 87, 772 A.2d
at 503.  There, a DNA test, taken just weeks after the final
divorce decree, demonstrated that the husband was not the father of the
youngest child in the family.  After the nisi period had run,[1] the trial court entered an order on a
stipulation amending the judgment to state that the husband was not the
biological father of the child, and therefore had “no parental rights and
responsibilities with respect to [the child].”  Id.  The mother then filed a
parentage action against the biological father; the trial court found for the
mother and the biological father appealed.  We held that the amendment to
the final divorce decree was a nullity because neither party
moved to amend the judgment during the nisi period, and neither
party had moved to amend the judgment under Rule 60.  Id.
¶  20.      
This case bears some
resemblance to Jones v. Murphy, in that the parties apparently expected,
by means of the 1999 agreement, to undo the parentage determination in the
final divorce decree.  “[T]he intent of the parties here is to amend the
final order . . . to reflect that the Defendant . . . is
not the biological father of the parties’ minor child.”  The stipulation
in this case was characterized as a motion to amend parental rights and
responsibilities, and to the extent that the court modified the same, it was a
valid exercise of the family court’s jurisdiction.  15
V.S.A. §§ 665, 668.  However, as an attempt to alter the parentage
determination in the original divorce decree, it is null and void.  Jones,
172 Vt. at
89, 772 A.2d at 504.[2]  The family court loses jurisdiction
to amend such determinations once the nisi period has run, absent a motion
under Rule 60.  Therefore, defendant’s argument—that the 1999 agreement
removed the necessary predicate (parentage) upon which to base the award of
college expenses—fails.  
 
¶  21.      
This decision comports with
the decisions in a majority of states that have examined situations in which
one parent challenges a child support order by presenting DNA evidence that the
parent is not biologically related to the child.  For example, numerous states
preclude ex-husbands from denying paternity in post-divorce proceedings when
the divorce decree establishes the child as issue of the marriage.[3]  Even when the biological father has
been located, an ex-husband may be estopped from
denying his status as the child’s parent.  W. v. W.,
779 A.2d 716, 722 (Conn.
2001).
¶  22.      
For the foregoing reasons,
we hold that the family court correctly concluded that the agreement is
unambiguous, and properly construed the parties’ agreement regarding college
expenses.  We further hold that insofar as the parties intended the 1999
agreement to alter the parentage determination in the final divorce decree,
they failed.  However, nothing in this opinion should be construed to foreclose
defendant’s ability to move to modify the college expenses provision.  It
is clear that the 1999 order left “issues of future child support, health
insurance, [and] college expenses” open to modification.[4]  
Affirmed.
FOR THE COURT:
 
_______________________________________
Associate Justice
 
 
 
¶  23.      
DOOLEY, J., dissenting.  The majority holds that the parties here
unambiguously intended to preserve defendant’s previously agreed obligation to
fund a portion of the child’s college education despite their subsequent
agreement that defendant is “not the biological father of the parties’ minor
child” and “as a result . . .  has no legal or physical rights and
responsibilities with respect to the parties’[] minor child.”  This
conclusion is supported by neither the language of the agreement nor the
evidence surrounding its execution, which demonstrate—at
a minimum—a patent ambiguity concerning the parties’ meaning and intent. 
Rather than affirm, therefore, the Court should reverse the judgment and remand
for the factual findings that the law and the record here require. 
Accordingly, I respectfully dissent.
¶  24.      
     
The main deficiency in the majority opinion, apart from its conclusion, is that
it barely acknowledges, and fails to address, defendant’s argument.  This
case is not primarily about paragraph 3 of the 1999 order, as the majority
states; it is about paragraph 1.  That paragraph states that “as of the
date of this stipulation, [defendant] has no legal or physical rights and
responsibilities with respect to the parties’ minor child.”  If
that paragraph contained nothing else, I believe that the resolution of this
case would be obvious.  The provision that defendant has no “legal . . .
responsibilities” would clearly preclude any child support obligation, and
related financial obligations, such as the higher education payment
responsibility that is at issue in this case.  It would cover those
financial responsibilities even though they were specified in earlier orders.
 
¶  25.      
The issue then is whether
the other language of paragraph 1, striking paragraph 2 of the original divorce
order and vacating “[o]nly Paragraphs 1, 6 and 7 of
the stipulated modification order dated March 24, 1998” makes the last sentence
of the paragraph inoperative as a matter of law. The family court held that the
opening language necessarily trumped the later language, because the obligation
that plaintiff is enforcing is in the 1998 agreement and the paragraph
containing it is not “1, 6, [or] 7.”  That logic is appealing, but we
should be suspicious of labeling as unambiguous language that is internally
inconsistent.  For a number of reasons, the internal inconsistency is
strong here, and the superficial logic of the family court analysis should not
prevail.  Bad drafting has made the language hopelessly ambiguous, and to
the extent the language is not ambiguous, it favors defendant’s result, not plaintiff’s.
¶  26.      
The majority’s main general
response to this dissent is that it is based on an assumption of defendant’s
intent that is a “basic, harsh philosophy” that defendant does not want to
continue “to love and provide for that child.”  Ante,
¶ 14.  If defendant wanted to continue to “provide for that child,”
he never would have contested the obligation to pay or brought this
appeal.  The essential disagreement between this dissent and the majority
is that I would consider and act on the evidence of defendant’s intent, whereas
the majority has refused to consider it and ignores it.  Defendant
testified that he “was certainly not inclined to accept any financial
responsibility at that point in time” and had an objection to “future or past
payments of child support and/or expenses for” the child.  The majority
displays its disapproval of this position by calling it a harsh philosophy when
stated in this dissent and suggesting that his financial argument means that he
does not love the child, comments that are neither supported
by the record or relevant to the appeal issue.  Nonetheless, there
is no question that this is the position defendant took before this Court and,
according to his testimony, his position at the time of the negotiation of the
agreement.  This dissent makes no assumptions concerning defendant’s
position.  The majority, on the other hand, assumes his position must be
to the contrary of what defendant states because it reflects a harsh philosophy, and that assumption is inconsistent with the undisputed
evidence.  
 
¶  27.      
With that general background
in mind, I address the specific reasons why we should reject the family court’s
reasoning.  The first and foremost reason becomes apparent when we examine
the substance of the agreement the parties reached in 1999.  As set out
above, paragraph 1 strikes or vacates four provisions of orders arising from
the parties’ divorce.  The first is paragraph 2 of the divorce order of
1994.  This paragraph specifies the parties’ parental rights and responsibilities
with respect to the child; striking this paragraph is entirely consistent with
defendant’s intent to give up all rights and responsibilities with respect to
custody of the child.
¶  28.      
The other three provisions,
all from the 1998 order, are related to parental rights and responsibilities,
and all involve relinquishment of defendant’s rights.  Paragraph 1 of the
1998  order provided joint access to the child’s
health, school, and counseling records.  Paragraph 6 of the 1998 order
required plaintiff to pay child support of $209 per month until the child
reached the age of eighteen or completed secondary education.  Paragraph 7
of the order required plaintiff to pay her portion of the child’s documented
uninsured health care costs to defendant.  
¶  29.      
The
remaining provisions of the 1998 order, not mentioned specifically in the 1999
agreement, all involved defendant’s financial responsibilities.  Paragraph 2 of the 1998 order
required  defendant to maintain medical insurance
for the child and each party to pay a portion of the child’s medical expenses
not covered by defendant’s medical insurance.  Paragraph 3 of the 1998
order, the paragraph involved in this case, required defendant to pay 60% and
plaintiff to pay 40% of the child’s college education costs.  Paragraph 4
specified that neither party was required to maintain the child as a
beneficiary under any retirement program that either might have. Paragraph 5
required each party to maintain insurance on the life of the child until she
completed college or reached the age of twenty-two.
 
¶  30.      
Under the family court’s
reasoning, the 1999 agreement meant that defendant relinquished full parental
rights, but retained full financial obligations as if there had been no
relinquishment.  This reasoning makes the 1999 agreement entirely
one-sided.  More importantly, despite the fact that paragraph 1 of the
1999 agreement says that defendant has no legal responsibilities with respect
to the child, in fact he retained the most important of his legal
responsibilities: those involving money.  The effect then is that the 1999
agreement is internally inconsistent, and the family court and majority of this
Court have given no effect to the final sentence of the first paragraph,
effectively reading it out of the agreement. 
¶  31.      
Second, despite the fact
that the last sentence of paragraph 1 of the 1999 agreement has no effect when
it comes to defendant’s legal responsibilities, it is the only provision left
giving plaintiff parental rights.  Rather than substituting a provision
with respect to custody of the child, the parties struck all agreements and orders, leaving only the general statement in paragraph 1 that
father has no rights and responsibilities with respect to the
child.  Thus, plaintiff  is in the position
of giving effect to the sentence to retain custody of the child, but denying
its effects when they involve elimination of defendant’s
responsibilities.  More importantly, the majority decision necessarily
means that part of the last sentence of the last paragraph of the 1999
agreement is in effect—the part that gives rights to the mother—while part is
not in effect—where it eliminates responsibilities of defendant—a parsing of
the language that belies any characterization that it is unambiguous.  
 
¶  32.      
Third, we are entitled to
consider context evidence in determining ambiguity, and the context evidence
here demonstrates ambiguity.  Isbrandtsen
v. N. Branch Corp., 150 Vt. 575, 578, 556 A.2d 81, 83-84 (1988) (in determining
whether an agreement is clear and unambiguous, we are not bound by the “four
corners” of the agreement but may admit extrinsic “evidence as to the
circumstances surrounding the making of the agreement as well as the object,
nature and subject matter of the writing”); accord Kipp
v. Estate of Chips, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999). 
Although the child of the parties was fourteen years old when the 1999
agreement was entered into and although the family court’s reasoning
necessarily means that defendant retained all financial
responsibilities, not just participation in college expenses, four years went
by with no demand for such participation.  The available evidence from a
1998 affidavit was that defendant made about $100,000 per year and plaintiff
about $20,000 per year; yet, plaintiff made no claim for child support. 
In fact, the 1999 agreement suggested that there would be no child support
order because plaintiff was “entitled to claim the parties’ minor child as a
dependent for income tax purposes on her 1999 tax return and thereafter.” Any
child support order based on the parties’ income would mean that defendant
would pay the majority of the child’s expenses and be entitled to the tax
deduction.  See In re Marriage of Moore, 719 N.E.2d 326, 328 (Ill.
Ct. App. 1999) (child support tax “exemption has historically been tied to
consideration by the Internal Revenue Service of which parent would contribute
the majority of the child’s support following the parent’s divorce”).
 
¶  33.      
The general child support
situation until the child reached the age of majority and went to college is
also informative.  The original child support order was established on a
temporary basis in November 1993, when the parties continued living in the same
house despite their separation and therefore no payment of child support was
appropriate.  Recognizing that this status quo would not continue, the
court ordered father to file an affidavit of income and assets with the
understanding that a monetary order would result.  It did not occur right
away, apparently because the parties continued to live in the same house. 
Once plaintiff moved to Virginia,
however, and defendant had sole custody, he sought a child support order and
finally obtained one in 1998.  Based on this history, the clear
expectation was that if plaintiff obtained custody, there would be a child
support order under which defendant would have to pay substantial
amounts.  That plaintiff never returned to the family court throughout the
child’s minority, as the 1993 temporary order contemplated, is a clear
indication that she believed she could not obtain general child support in
light of the 1999 agreement.
¶  34.      
Fourth, the parties’
agreement to vacate certain provisions of the 1998 order without replacement
language suggests that defendant was to have no future financial
obligation.  For example, the 1998 order required defendant to maintain
the child on his health insurance with the parties sharing uncovered costs 40%
(plaintiff), 60% (defendant).  Because defendant had custody of the child,
in order to implement that agreement, paragraph 7 of the 1998 order required
plaintiff to pay her share of those costs within thirty days.  Although
the 1999 agreement switched custody to plaintiff, and according to the
majority’s analysis retained the cost-sharing arrangement, it struck
plaintiff’s time limit for making payments without substituting a time limit
for defendant.  This omission suggests that defendant 
had no further obligation to pay uncovered medical expenses, and there
is no evidence that mother sought such amounts from plaintiff.
¶  35.      
Similarly, paragraph 1 of
the 1998 order gave defendant access to records of the child including “law,
school, health and counseling records.”  The 1999
agreement specifically eliminated that right, although under the family court
and majority holding, defendant remained liable for college expenses, and
medical expenses as well.  That defendant is now denied access to these
records is an indication that he does not have to pay for the services
documented in those records.  Under the majority’s result, he has cut
himself off from the very information that enables him to determine that the
expenses he pays are valid.  
 
¶  36.      
Fifth and finally, I reach
paragraph 3 of the 1999 agreement, the focus of the family court and the
majority.  This paragraph says that all the issues related to defendant’s
financial responsibilities “are not waived by either party.”  The family
court, and the majority, are clear that the language of this paragraph does not
give defendant a right to contest any of his financial obligations in an
enforcement proceeding.  Beyond that, the meaning of the language is
unexplained, or it is explained in terms directly contrary to the
holding.  
¶  37.      
The family court says that
paragraph 3 means that “child support issues, including college expenses, can
be disputed in the future,” a phrase repeated further in the decision. 
The majority embraces an equally cryptic, but different meaning: the language
“reserves to each party the right to continue to litigate” but “puts each party
on notice that he or she might still be called to account for those provisions.” 
Ante, ¶ 9.  The majority suggests that the
problem is the title to defendant’s motion, as a motion to strike, rather than
a motion to modify.  Ante, ¶ 22 n.4.  
A motion to strike part of an order is a motion to modify the order. 
¶  38.      
In the words of the family
court, this is “the future,” and defendant seeks to litigate whether he any
longer owes college expense reimbursement in light of the language of paragraph
1.  Neither the majority nor the family court explains why he cannot litigate
the issue in this proceeding or how he can litigate it.  Despite the vague
suggestions that there is some alternative way to litigate, I read the majority
as imposing exactly the waiver result that the language of paragraph 3
denies.  That is, by failing to get into the 1999 agreement that the
college expense obligation was vacated, defendant has waived any defense to a
demand to pay.  In effect, the language of paragraph 3 is being
interpreted exactly the opposite of its wording.
 
¶  39.      
An agreement is ambiguous if
“reasonable people could differ as to its interpretation.”  Trustees of Net Realty Holding Trust v. Avco
Fin. Servs. of
Barre, Inc., 144 Vt. 243, 248, 476 A.2d 530, 533
(1984).  The majority holds that the only reasonable interpretation of the
1999 agreement between the parties is that they modified parts of their divorce
order, but not the requirement that defendant pay part of the minor child’s
college expenses.  The more likely interpretation is that the parties
agreed in 1999 that defendant would have no further legal responsibility for
the minor child but could not agree to the specific consequences of that
general agreement with respect to defendant’s financial responsibilities. 
Under that interpretation, defendant can litigate his financial obligations in
this proceeding.
¶  40.      
For the many reasons cited
in this dissent, the 1999 agreement is at least ambiguous.  I would
reverse and remand to the family court to reach an interpretation in light of
the evidence that it heard.
¶  41.      
I am authorized to state
that Justice Johnson joins this dissent.
 
                                                                    
_______________________________________
Associate Justice
 





[1]  The nisi
period in Vermont
is three months.  15 V.S.A. § 554.  


[2]  See also In
re M.Z., 472 N.W.2d 222, 223 (N.D. 1991) (stipulation of paternity in
support judgment precluded parties from relitigating
the issue).  But see Opland v. Kiesgan, 594 N.W.2d 505, 512 (Mich. Ct. App. 1999)
(holding that an order based on a stipulation of the parties to modify the
parentage provision of a divorce order is valid and prevents the putative
father from raising judicial estoppel in a later
paternity action).


[3]  See In re
Marriage of Hotz, 214 Cal. Rptr.
658, 660 (Ct. App. 1985); W. v. W., 728 A.2d 1076, 1080-81 (Conn. 1999);
S.R.D. v. T.L.B., 174 S.W.3d 502, 508 (Ky. Ct. App. 2005); Paternity
of Cheryl, 746 N.E.2d 488, 499 (Mass. 2001); In re Marriage of Holland,
730 P.2d 410, 411 (Mont. 1986); Callison v.
Naylor, 777 P.2d 913, 916 (N.M. Ct. App. 1989); Shondel
J. v. Mark D., 853 N.E.2d 610, 614 (N.Y. 2006); In re Gilbraith, 512 N.E.2d 956, 961 (Ohio 1987); State ex
rel. Russell v. West, 115 S.W.3d 886, 892 (Tenn.
Ct. App. 2003);  In re R.J.P., 179 S.W.3d 181, 186 (Tex. App.
2005); Marriage/Children of: Betty L.W. v. William E.W., 569 S.E.2d 77,
86 (W. Va. 2002) (per curiam); In re Paternity of
JRW & KB, 814 P.2d 1256, 1264 (Wyo. 1991).  


[4]  The dissent
suggests that the majority opinion gives only mother, and not father, rights
under paragraph 3 of the 1999 Order.  This is not correct.  The case
is here on plaintiff’s motion to enforce.  Defendant failed to seek modification,
instead responding with a motion to strike the March 1998 Order as a
nullity.  At the time of this appeal, he had not yet filed a motion to
modify the provision governing college expenses.      



