WILLIAM TERRY BADHAM, II v. AMY O. BADHAM (NOW OAKLEY)
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RENDERED:
NOVEMBER 7, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002380-MR
AND
NO. 2001-CA-002447-MR
WILLIAM TERRY BADHAM, II
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 99-CI-00424
AMY O. BADHAM (NOW OAKLEY)
APPELLEE/CROSS-APPELLANT
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BAKER, BARBER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
William Terry Badham, II has appealed from an
order of the Franklin Family Court entered on October 21, 2001,
which denied both his motion to designate him as “primary
residential parent” for his three children, and his motion to
modify the timesharing agreement between himself and his former
wife, Amy O. Badham (now Oakley).
from that same order.
Oakley has cross-appealed
Having concluded that the trial court
erred by refusing to enforce the undisputed terms of the
settlement agreement in question, and that Oakley’s arguments on
her cross-appeal are moot, we reverse and remand.
Badham and Oakley were married on August 31, 1992, and
a decree of dissolution was entered on August 5, 1999.
Three
children were born of this marriage, William Terry Badham, III,
born July 11, 1993, and twins, Jacob Quinton Badham and Daniel
Hugh Badham, born December 29, 1994.
custody of their three sons.
Both parents sought
On December 14, 2000, the trial
court awarded the parties joint custody of all three children,
but neither the father nor the mother was designated as the
primary residential parent.1
Approximately one month later, on January 9, 2001, the
father filed a motion with the Franklin Family Court seeking to
have himself designated as “primary care provider” for all three
children and to modify the timesharing and support arrangements.2
1
Throughout the proceedings below and in the briefs to this Court, the terms
“primary caretaker,” “primary care provider,” “primary custodial parent,” and
“primary residential parent” have apparently been used interchangeably. This
is incorrect. The term “primary caretaker” refers to the standard that some
states employ to determine which parent should receive custody. Kentucky
does not follow such a standard. See 16 Graham and Keller, Kentucky
Practice, Domestic Relations Law, § 21.29 (1997). The term “primary
residential parent” refers to the parent with whom the child resides most of
the time. See Aton v. Aton, 911 S.W.2d 612 (1995). The term “primary
custodial parent” refers to those cases where one parent has received custody
of the child over the other. Id. The father apparently uses the term
“primary care provider” synonymously with the term “primary residential
parent.”
2
Prior to this motion, the father moved the family court to modify the joint
custody order entered on December 14, 2001, and to grant him primary custody.
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Attached to the father’s motion were reports from Dr. Paul
Stratton, a licensed psychologist, Dr. Robert Rapp, a professor
of pharmacy and surgery at the University of Kentucky, and Susan
P. Schweder, a licensed practical nurse with training in the
recognition of substance abuse problems.
All three reports
opined that the mother’s extensive use of prescription drugs
could be indicative of a substance abuse problem.
A hearing on
this matter was scheduled for February 26, 2001.
Prior to the scheduled hearing date, the father and
the mother met without counsel and purportedly reached a
settlement agreement with regard to issues such as child support
and visitation rights.
In addition, this agreement provided
that joint custody of the children would continue, but the
father would be named primary residential parent.
At the
hearing scheduled for February 26, 2001, the agreement was read
into the record by counsel for the father.
After the agreement
was read in open court, both the father and the mother stated
affirmatively on the record that they each consented to the
terms of the agreement.
However, after a written agreement was
drafted, the parties realized that they had differences as to
the terms concerning the mother’s weekly visitation rights.3
The family court, in an order entered on January 16, 2001, denied this
motion. The father has not appealed from that order.
3
The dispute concerned whether the mother was entitled to overnight
visitation on Tuesday and Thursday nights.
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Therefore, the mother refused to sign the agreement as drafted
by counsel for the father.
On March 16, 2001, the father moved the trial court to
enter an order requiring the parties to comply with the oral
agreement.
The family court made a determination that the
parties’ agreement “fell through,” denied the father’s motion,
and scheduled a hearing to once again consider the father’s
motion to have himself named “primary care provider.”
On August
29, 2001, one day prior to the date of the scheduled hearing,
the mother moved the trial court to dismiss the father’s motion.
The basis for the mother’s motion to dismiss was that the father
had failed to file supporting affidavits along with his motion
to modify custody as required by KRS4 403.340 and KRS 493.350,
and that the father was not presenting any new evidence which
would warrant a modification of the original order awarding the
parties joint custody.
On October 2, 2001, the family court denied the
father’s motion to have himself designated “primary care
provider,” without ruling on the mother’s motion to dismiss.
The family court found that the father had not presented any new
evidence which was not also available to the court when the
original order granting the parties joint custody was entered
almost a year earlier on December 14, 2000.
4
Kentucky Revised Statutes.
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Hence, the trial
court ruled that there was no evidence which would warrant a
change in the original joint custody order.
Both parties then
appealed to this Court.
The father’s first claim of error is that the family
court erred by not enforcing the terms of the settlement
agreement as read in open court on February 26, 2001.
Specifically, the father argues that “[p]lacing the terms of the
parties’ agreement upon the record effected a binding
[s]ettlement [a]greement” on the parties.
The father further
argues that even if the provision related to the mother’s weekly
visitation rights could not have been enforced due to the
misunderstanding of the parties, the mistake as to that
provision does not preclude enforcing the other undisputed terms
of the settlement agreement.
We agree.
In Calloway v. Calloway,5 the parties to a divorce
proceeding had reached an agreement as to all contested issues
except for maintenance.
Counsel for the husband read the
agreement aloud in open court stating that “we'll consider it to
be in force and effect as of today and we intend to reduce it to
writing, but this will be the agreement of the parties.”6
Both
parties stated affirmatively on the record that they consented
to the terms of the agreement.
5
Ky.App., 707 S.W.2d 789 (1986).
6
However, after the agreement had
Id. at 790.
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been reduced to a formal draft, the wife refused to sign it.
As
the basis for her refusal, she claimed that the agreement as
read into the record was not binding because it did not comply
with KRS 403.180, which requires that property settlement
agreements be in writing, and that the agreement violated the
statute of frauds since a transfer of real property was
involved.
This Court rejected both arguments and stated:
“In the administration of justice and the
prompt dispatch of business, courts must and
do act upon the statements of counsel and
upon the stipulations of parties to pending
causes. Where the parties have voluntarily
entered into a stipulation, which appears
fair and reasonable for the compromise and
settlement of the issues of a pending cause,
and where the stipulation is spread upon the
record with the consent and approval of the
court, as here, the parties are bound
thereby and the court may, thereafter,
properly proceed to dispose of the case upon
the basis of the pleadings, the stipulation
and admitted facts.”7
Similarly, in the case sub judice, counsel for the
father read the terms of the settlement agreement into the
record in open court.
Further, after the terms were read, both
the father and the mother clearly and affirmatively stated on
the record that they agreed to those terms.
There was no
misunderstanding concerning the term which provided for the
father to be the primary residential parent.
7
The only
Id. at 791 (quoting Peirick v. Peirick, 641 S.W.2d 195 (Mo.App. 1982)).
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misunderstanding concerned whether the mother was entitled to
weekday overnight visitation.
Thus, the question is whether the terms of the
agreement concerning the father being the primary residential
parent and the mother’s weekday visitation rights were separate
and enforceable independently of each other.
While it is true
that a contract may be set aside where there was a mutual
misunderstanding or mistake as to the meaning of the contract
terms,8 it is also well settled that the terms of a contract may
be severed to enforce those terms the parties have agreed upon,
if those terms are independent from the terms that could not
have been enforced due to the misunderstanding.9
In the case sub judice, the settlement agreement
between the mother and the father covered several issues
including child support, tax-related matters, the designation of
the father as primary residential custodian, and the mother’s
visitation rights.
However, the only disputed term related to
the mother’s weekly visitation rights.
We hold that this
8
Redford v. Thompson’s Adm’r, 259 Ky. 536, 82 S.W.2d 796, 800 (1935). See
also Haynes, Kentucky Jurisprudence, Contracts § 30-6 (1986). “[N]ormally a
contract may always be avoided when there has been a mutual mistake of the
parties as to the . . . terms of the agreement when the mutual mistake is of
such a nature that shows that there was never a mutual manifestation of
assent to the terms of the contract.”
9
McHargue v. Scott, Ky., 305 S.W.2d 929, 932 (1957). See also Business Men’s
Assurance Co. of America v. Eades, 290 Ky. 553, 161 S.W.2d 920, 922
(1942)(holding that “[p]rimarily the question of whether a contract is entire
or severable depends upon the intention of the parties, the objects to be
attained and the common sense of the situation”).
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provision of the settlement agreement in question is severable
from the other terms.
Accordingly, the trial court erred by not
enforcing those terms of the settlement agreement to which there
was no dispute between the parties, including the provision
designating the father as the primary residential parent.
The father’s only remaining claim of error is that
absent a finding that the settlement agreement should have been
enforced, the trial court erred by not designating him as the
primary residential parent under the circumstances of this case.
Since we have agreed that the terms of the settlement agreement
to which there was no dispute should have been enforced, this
claim of error is rendered moot and will not be discussed on
appeal.10
In the mother’s cross-appeal, she argues that after
the family court refused to enforce the settlement agreement, it
was without jurisdiction to undertake a review to determine
whether the original joint custody should be modified.11
The
mother further argues that the doctrine of collateral estoppel
precluded the family court from reexamining her fitness as a
parent after the family court refused to enforce the settlement
10
See Murphy v. Commonwealth, Ky., 50 S.W.3d 173, 184 (2001)(stating that
“[a]ppellant Murphy raises several issues regarding the trial court's denial
of his motion for probation. As we are reversing Murphy's conviction [on
other grounds], these issues are moot and require no further discussion”).
11
The mother argues that the father failed to attach the necessary affidavits
with his motion to modify the original order granting joint custody as
required by KRS 403.340 and KRS 403.350.
-8-
agreement.
However, our determination that the settlement
agreement should have been enforced to the extent the parties
had agreed upon the meaning of the terms renders these issues
moot as well.
Accordingly, we will not address the mother’s
claims of error on her cross-appeal.
Based on the foregoing, the order of the Franklin
Family Court is reversed and this matter is remanded for further
proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Michael L. Judy
Frankfort, Kentucky
Mark A. Bubenzer
Frankfort, Kentucky
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