WILLIAM HENRY MOSS v. SUSAN PATRICE MOSS
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RENDERED: MAY 19, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002404-MR
WILLIAM HENRY MOSS
APPELLANT
APPEAL FROM WARREN FAMILY COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 92-CI-00424
v.
SUSAN PATRICE MOSS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
William Henry Moss appeals from the September
3, 2004, and October 20, 2004, orders of the Warren Family Court
addressing post-decree motions relating to various costs
incurred by his son, Patrick Harrison Moss, relative to his
college education and medical expenses.
We affirm.
William and Susan Patrice Moss were married on June
19, 1982.
Two children were born during the marriage.
Patrick
was born August 7, 1985, and Colin Bradley Moss was born August
1
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2, 1989.
William and Susan separated on August 18, 1991, and
Susan filed a petition for dissolution on May 12, 1992.
The
parties entered into a settlement agreement resolving all issues
relating to the dissolution on September 11, 1992, which was
incorporated into the decree of dissolution entered September
14, 1992.
On June 13, 2002, Susan filed a motion to enforce the
settlement agreement concerning the issue of payment of
Patrick’s college education.
Susan’s motion sought to enforce numerical paragraph
two of the separation agreement addressing child support in
general.
Specifically, paragraph 2(c) dealt with college
education in the following manner:
“William shall pay for all
the reasonable costs of a college education for both of the
parties’ children at the then prevailing tuition rate for
Kentucky state colleges.”
Patrick had graduated from high
school and was entering the University of Louisville, Speed
School of Engineering, for the fall 2003 semester.
Following a
hearing on Susan’s motion, the family court entered an order
January 29, 2004, which held in relevant part:
(3) [William] is to pay the reasonable
costs of a college education for Patrick
Moss; (sic) in a manner and amount agreed
upon between Patrick Moss and [William];
(4) [William] is to provide directly to
Patrick Moss an amount agreed upon between
Patrick Moss and [William] for additional
reasonable educational expenses, said amount
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not to exceed $2,000.00 (two thousand
dollars) per semester;
(5) No educational payments made by
[William] for the benefit of Patrick Moss
with respect to tuition, room and board or
payments made for additional educational
expenses shall pass through the Petitioner,
Susan Patrice Moss (now Gardner);
(6) [William] is to provide proof of
payments made on behalf of Patrick Moss for
tuition, room and board, and any deposits
into Patrick Moss’ checking account for
additional educational expenses, to [Susan].
Despite the entry of the above order the parties were
soon back in court when on June 29, 2004, Susan alleged in a
motion that William “ha[d] failed and refused to comply with the
parties’ previous agreement and [the] Court’s order” concerning
Patrick’s college tuition.
William responded by stating that
Patrick had been on scholarship but had not done well and by the
end of his first year in college, his G.P.A. was 1.53, that he
had given $2,000.00 to Patrick for his reasonable expenses, that
he and Patrick had discussed the tuition, expenses and grades
issues, and that William, as a father, had a duty to hold
Patrick accountable for his poor academic performance.
After
numerous filings by the parties relative to their position on
Patrick’s college tuition, a hearing was held on July 21, 2004.2
Thereafter, the family court entered an order on September 3,
2
There is no transcript or video of this hearing in the appellate file.
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2004, granting in part Susan’s motion.
The court held as
follows:
[William] contends he complied with the
January 4, 2004 Order in that he and Patrick
agreed as to how much money Patrick would
receive from him and that is the amount that
was paid for the Fall of 2003 and Spring of
2004. However, [William] contends that due
to Patrick’s poor performance in school he
should no longer be required to pay all of
Patrick’s reasonable educational expenses.
Patrick did perform quite poorly in
college his first year. However, the Speed
School at the University of Louisville,
allowed Patrick to enroll again and retake
some of his courses. The Court recognizes
and commends Patrick for his determination
to remain in school and not give up.
However, the Court also recognizes
[William’s] contention in that he feels his
son should take responsibility for his
performance in school.
The Court finds that [William] shall be
responsible for the reasonable educational
expenses of Patrick Harrison Moss for the
Fall 2004 semester. This amount shall
include: tuition, books, housing ([William]
shall only be required to pay the amount
required for double occupancy, as a private
room is not a reasonable educational
expense), parking permit, meal plan, books,
school supplies, and student club dues. The
Court takes into consideration the increase
in the educational expenses [William] will
pay as a result of Patrick losing his
scholarship and other supplemental funds.
[William] shall provide Patrick with
additional spending money in the amount of
one thousand five hundred dollars
($1,500.00) per semester. Patrick shall use
these funds for any other expenses he may
have such as his cell phone, travel, extra
food, etc. In addition, [William] shall
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continue to cover Patrick on his medical
insurance and pay for Patrick’s doctor
visits and prescriptions. Patrick shall
make every attempt to contact [William]
concerning his health care needs to
determine if his condition is something that
can be treated by [William].
The above stated arrangement shall
continue for any and all subsequent
semesters that Patrick is a full-time
student. However, should Patrick obtain
less than a 2.0 (C) grade point average for
the Fall 2004 semester or any subsequent
semester, [William] shall no longer be
required to pay the reasonable educational
expenses or other related expenses of
Patrick Harrison Moss, except medical
expenses.
WHEREFORE, IT IS HEREBY ORDERED AND
ADJUDGED that [Susan’s] motion is GRANTED IN
PART. [William] shall pay the reasonable
educational expenses of Patrick Harrison
Moss as set forth hereinabove. The payment
of these educational expenses is dependent
upon Patrick Harrison Moss maintaining at
least a 2.0 (C) grade point average.
IT IS FURTHER ORDERED AND ADJUDGED that
[Susan’s] motion for attorney fees is
DENIED.
Each party filed a motion to alter, amend, or vacate
the September 3, 2004, order for various reasons.
The family
court held a hearing on the motions on October 6, 2004, and then
entered an order entitled “Order Regarding Various Motions” on
October 20, 2004.
Although the order is five pages long, we
believe it is necessary to set forth the majority of the wellreasoned order entered by the family court.
-5-
The order stated:
Petitioner moves the Court to alter,
amend, or vacate the Court’s Order of
September 3, 2004, to provide for the
Respondent to reimburse the parties’ son,
Patrick Moss, for educational expenses
incurred by him and not previously paid by
Respondent. The Court agrees with
Petitioner’s assertion. In the parties’
Settlement Agreement entered September 11,
1992, Respondent agreed to pay for all the
reasonable costs of a college education at
the then prevailing tuition rate for
Kentucky state colleges. At the previous
hearing, Respondent stated his concern for
Patrick’s grades and how he did not believe
Patrick should be rewarded for failing to
perform well in school. While the Court
agreed with a portion of Respondent’s
argument and set out certain guidelines for
Patrick to comply with, the Court does not
find that Patrick bears responsibility for
payment of the semesters for which
Respondent previously failed to pay prior to
the Court’s decision on the motion to
enforce the Settlement Agreement. Although,
Respondent had his reasons for declining to
pay Patrick’s school tuition and expenses,
the fact remains that Respondent was and
remains contractually obligated to pay for
Patrick’s tuition and reasonable school
expenses. An agreement is an enforceable
contract between parties, and it is not the
place of the courts to disturb it absent
some showing of fraud, undue influence,
overreaching or manifest unfairness. See,
Rupley v. Rupley, Ky. App., 776 S.W.2d 849
(1989); McGowan v. McGowan, Ky. App., 663
S.W.2d 219 (1983); Peterson v. Peterson, Ky.
App., 583 S.W.2d 707 (1979). The parties
entered into a Settlement Agreement in which
Respondent agreed to provide more than was
statutorily required of him when he agreed
to pay for the college education of the
parties’ two (2) children. The Court
reviewed the Settlement Agreement and found
the agreement was entered into absent fraud,
undue influence, overreaching or manifest
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unfairness. Thus, the agreement is binding
upon Petitioner and Respondent. The fact
that the portion of the agreement relating
to reasonable college expenses was subject
to interpretation by the Court does not make
the agreement invalid as it related to
Patrick’s previous college expenses.
Petitioner filed a motion for Respondent to
pay according to the Settlement Agreement
and Patrick’s tuition had to be paid before
a hearing on the matter. Thus, the Court
finds that Respondent shall be responsible
for payment of the previous college tuition
and expenses of Patrick. Patrick shall
provide receipts to Respondent for the
amounts he previously paid.
The second issue addressed by
Petitioner in her motion was payments made
directly from Respondent to Patrick.
Petitioner contends the payments should be
made to her or another party rather than
directly to Patrick. The Court does not
agree with Petitioner’s contention,
Respondent shall continue to pay for
Patrick’s tuition and reasonable college
expenses as previously ordered by the Court.
Respondent also filed a motion to
alter, amend, or vacate the Court’s Order of
September 3, 2004. Respondent contends he
should be limited to paying only six (6)
additional semesters of Patrick’s education.
The Court disagrees with Respondent’s
contention. As stated hereinabove,
Respondent is contractually obligated to pay
for the reasonable costs of Patrick’s
education. In its order of September 3,
2004, the Court set forth certain guidelines
for Patrick to follow in order to receive
the financial support of Respondent. Should
Patrick comply with these guidelines, then
Respondent will not be required to pay more
than he bargained for in the parties’
Settlement Agreement. Should Patrick fail
to follow the guidelines set forth in the
Court’s September 3, 2004 Order, Respondent
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will no longer be required to pay the
reasonable costs of Patrick’s college
education. Thus, limiting Respondent’s
payments to six (6) semesters is
unnecessary.
Respondent next contends that he should
be given the PIN and password necessary to
access Patrick’s grades. Respondent asserts
that if he had access to Patrick’s grades,
he would be able to help him should he see
that Patrick’s grades are not what they need
to be. The Court agrees with Respondent’s
contention. Due to Patrick’s dishonesty in
the past concerning his grades and the
failure of the parties and Patrick to
effectively communicate concerning this
area, the Court finds that Patrick shall
provide his PIN and password to Respondent.
Respondent shall only have access to
Patrick’s grades but shall not be privy to
any other information concerning Patrick at
the University of Louisville.
Respondent further contends Patrick
should provide receipts to him for the one
thousand five hundred dollars ($1,500.00)
the Court previously ordered him to pay each
semester. The Court disagrees with
Respondent’s contention. To require Patrick
to account for every dollar spent would be
an unnecessary burden to him. The
responsibility to ensure the money is spent
appropriately is on Patrick. Should Patrick
spend the money unwisely, it is Patrick who
will suffer the consequences when he fails
to have money to meet his needs.
The next issue Respondent contends
should be altered or amended is the
insurance coverage for Patrick. Respondent
contends KRS §403.211(7)(a) and (c)(2)
require Petitioner also be responsible for a
portion of the insurance costs. In its
order of September 3, 2004, the Court
ordered that Respondent continue to cover
Patrick on his medical insurance. In his
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affidavit of July 19, 2004, Respondent
stated:
I have provided Patrick’s health
insurance coverage since he was
born and continue to do so to this
day even though not mandated by
the courts to do so after the age
of 17. Due to his condition of
cystic fibrosis, his premium cost
is approximately $500 (five
hundred dollars) extra per month.
Since Patrick entered college, I
have paid approximately $6,000.00
(six thousand dollars) in
insurance premiums for Patrick.
Respondent’s affidavit was filed along with
his Response and Objection to Petitioner’s
Motion for Court to Enforce Previous Orders
for Payment of Attorney Fees. In his
response, Respondent did not object to
paying Patrick’s insurance, nor did he move
the Court to require Petitioner to pay a
portion of the insurance costs. Respondent
stated that he was the party who had always
paid for Patrick’s health insurance. The
Court is not requiring Respondent to pay for
more insurance coverage than he previously
paid, the Court simply ordered Respondent to
continue providing health insurance coverage
for Patrick in the same manner as he has
always done. Patrick is a college student
without access to better or equal health
insurance that is supplied by Respondent.
Thus, the Court finds Respondent shall
continue to provide health insurance
coverage for Patrick in the same manner as
he previously provided health insurance
coverage until Patrick completes his college
education.
Respondent’s final contention was that
the September 3, 2004 Order should be
vacated as to the portion requiring
Respondent to pay for Patrick’s doctor
visits and prescriptions. The Court again
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disagrees with Respondent’s contention. Due
to Patrick’s health condition he has
reasonable and necessary expenses associated
with his well being that other college
students may not have. Thus, the Court
finds doctor visits and prescriptions to be
a part of the reasonable expenses associated
with Patrick attending college. Respondent
contends the case of Young v. Young, Ky.,
413 S.W.2d 887 (1967), prevents the court
from having authority to impose a duty of
support upon a parent after a child has
reached their eighteenth birthday. However,
the court in Young also stated, “[I]n the
absence of a contract the legal obligation
of a father to support his children
terminates upon their reaching their
eighteenth birthday.” Id. at 888. Here the
parties contracted that Respondent would
provide for the reasonable costs of a
college education. The Court finds doctor
visits and prescriptions are part of the
reasonable costs associated with Patrick’s
college education. Thus, Respondent is
legally responsible for providing these
services to Patrick. The Court has not
placed an undue burden on Respondent as
Patrick was ordered to make every attempt to
contact Respondent concerning his health
care needs to determine if his condition is
something that can be treated by Respondent.
Thus, Respondent shall be responsible for
payment of Patrick’s doctor visits and
prescription costs.
WHEREFORE, IT IS HEREBY ORDERED AND
ADJUDGED that Petitioner’s motion to alter,
amend, or vacate is GRANTED IN PART.
Respondent shall be required to reimburse
Patrick for payment of the previous college
tuition and expenses paid by Patrick.
Patrick shall provide receipts to Respondent
for the amounts he previously paid.
IT IS FURTHER ORDERED AND ADJUDGED that
Respondent’s motion to alter, amend, or
vacate is GRANTED IN PART. Patrick shall
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provide Respondent his PIN number and
password so Respondent will have access to
Patrick’s grades. Respondent shall not be
entitled to access any other information
pertaining to Patrick at the University of
Louisville.
This appeal followed.
On appeal, Williams sets forth three claims of error.
He contends the family court erred:
1) by ordering him to pay
for Patrick’s health insurance, doctor visits and prescription
costs while he remains in college and by ruling that these
health care costs are reasonable costs associated with Patrick’s
college education; 2) by not limiting the number of college
semesters he must pay; and 3) by depriving him of parental
control over his son.
We believe KRS 403.211(7)(c) is
applicable to the first issue raised by William.
It states:
(c) The court shall order the cost of
health care of the child to be paid by
either or both parents of the child
regardless of who has physical custody. The
court order shall include:
1. A judicial directive designating
which parent shall have financial
responsibility for providing health
care for the dependent child, which
shall include, but not be limited to,
insurance coverage, payments of
necessary health care deductibles or
copayments; and
2. A statement providing that if the
designated parent’s health care
coverage provides for covered services
for dependent children beyond the age
of majority, then any unmarried
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children up to twenty-five (25) years
of age who are full-time students
enrolled in and attending an accredited
educational institution and who are
primarily dependent on the insured
parent for maintenance and support
shall be covered.
A review of the record clearly shows that William has never
seriously contested his duty to provide health insurance or
cover necessary and reasonable medical expenses incurred by
Patrick.
In fact, the record indicates that William, a
physician who specializes in emergency and internal medicine,
not only regularly covered these medical costs but encouraged
Patrick to see him for treatment.
This was in line with
William’s desire to develop a better father-son relationship
with Patrick which is apparent throughout the record.
Despite
William’s argument to the contrary, the family court did not err
in ordering him to pay these medical expenses nor in finding
that they were “reasonable costs associated with Patrick’s
college education” because Patrick suffers from cystic fibrosis
which has to be regularly treated to ensure Patrick can attend
classes and keep up with all necessary school work.
William
sought assurances that Patrick would be successful in college
and this was a reasonable order to assist in achieving this
goal.
William next contends that the family court erred by
not restricting his obligation to pay for only eight semesters
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of college.
However, this argument is again in contrast to his
stated desire to see Patrick succeed in college and be
successful in general.
The settlement agreement placed no
limitations on the number of semesters but the court order that
Patrick be a full-time student and maintain a 2.0 grade point
average will ensure that Patrick improve his academic standing
and finish college within a reasonable time frame.3
We believe
the family court’s order on this issue was reasonable and in
line with the agreement and intent of the parties.
The crux of the appeal appears to be the final issue
raised by William.
William contends that the order denies him
“the effective ability to parent, discipline, supervise, and
oversee his son’s progress in college, and implement measures
which [he], as a father, believes will serve his son’s best
interests.”
William argues that the Court’s orders undermine
his “ability to teach Patrick accountability and responsibility
for his actions, including poor choices he has previously made.”
William contends the family court abused its discretion because
he has lost the ability to impose reasonable limitations on
Patrick and to make Patrick accountable for his own behavior.
Susan, on the other hand, points out various actions taken by
William she believes has caused the father-son relationship to
deteriorate and why court intervention was necessary to ensure
3
This Court notes that today many college students do not achieve a college
degree in only four years as was the norm in previous years.
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William would comply with his legal obligations as set forth in
the settlement agreement entered years previously.
While we
applaud William’s concern and commitment toward his son’s
success, we believe the family court order more than adequately
addressed his concerns while enforcing the terms of the
settlement agreement.
Patrick is required to maintain a full-
time student status and at least a 2.0 G.P.A. per semester.
William is to pay necessary and reasonable expenses and to have
direct contact with Patrick without having to go through Susan.
We believe the family court’s order was drafted with
considerable thought and insight and was not an abuse of
discretion.
For the foregoing reasons we affirm the orders of the
Warren Family Court.
DYCHE, JUDGE, CONCURS.
BUCKINGHAM, SENIOR JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David A. Lanphear
Bowling Green, Kentucky
David F. Broderick
Bowling Green, Kentucky
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