*1 оrder; however, the mere support payments be- child support child Court-ordered parents does not. We money judgments on the dates cohabitation come final arrearag- support conclude that child im- further due and are thereafter they are prior marriage or accumulated to changе es that or modification.... mune from remarriage parents not nullified as are are support of child Past-due installments marriage remarriage, as or be collected a result such judgments final arrearages may be judgment.... A trial court to such any collect release, asserted, modify, discharge the where that hаs been may not or even support assigned agency to of this State. obligor past-due child once an un- obligation matures and becomes final questions answered. Certified original divorce decree. der omitted). (citations Id. at au find aforementioned particularly Further persuasive.
thorities
more, existing presently we believe law
in this directs us to concur with state observed, correctly
authority. As the CSED authority lack the circuit courts of this state modify support cancel accrued child or (formerly Aycoth), Melanie P. JESSEE installments, Goff, Syl. pt. v. Goff below, Appellant, Plaintiff sup child accrue, they port payments vest Carter Carter, AYCOTH, Defendant Edward D. judgments may support child below, Aрpellee. “modified, suspended or
not be terminated No. 24476. by between Kimble, Syl. pt. divorce.” Kimble Supreme Appeals of Court of these For Virginia. reasons, hold that when valid court we 1998. Submitted requires payment support of child order another, parent parent who is 12, 1998. Decided June payments such failed to required tо make has Dissenting Opinion of Justice any required support all of the make July Workman marriage or re payments, subsequent marriage parents operate does not prior
nullify arrearages that accumulated Similarly, remarriage. marriage or
to such assigned has parent hold
we that when arrearages that accu
the state child prior pursuant to a court order
mulated valid remarriage of marriage parents marriage оr parents, subsequent
divorced parents inhibit
remarriage does not right to collect the child
the state’s
arrearages.
IV.
CONCLUSION we opinion,
For the reasons stated remarriage of marriage or
conclude automatically preexist- terminates a
parents
Princeton, County, Virginia. Mercer all appellee] pay [the Edward casualty payments, or loss or mortgage premiums, residence. insurance said expenses pay all at- Melanie shall *3 therein; her neces- tendant to residence sary paid shall be repairs and maintenance hаve the sole equally. Melanie shall and to the sale of said to market premises, and shall ex- Edward residential agreements or documents ecute such any sale, necessary to effectuate be Wolfe, Wolfe, III, & Harold B. Akers listing ... at including agreement realtor’s Princeton, Buey, Beckley, for and Winifred and closing, the shall divide receive Appellant. equity equal in said residen- shares expressly premises, tial stated to which Kilgore, Kilgore, Burton & Prince- Debra price; between the sale be: the difference ton, Appellee. for commission; attorneys less less realtor’s fees, estate prorata real tax- PER excisе CURIAM:1 es, fees, recording preparation document (formerly appellant, Melanie Jessee costs; fees, closing the and other usual Aycoth), of an seeks reversal pay purchase the necessary balance to off County order of the Mercer Circuit in money, priority, first deed of trust. appellant to sell her residence requiring the appellant’s divorce, proceeds only the with the Following and divide the the Aycoth. spouse, appellee Edward former in marital residence with child remained the Appellant argues the circuit court erred that left to appellant the until the child home agree- dеtermining in the settlement the college. After the child left resi- attend incorporated attorney into dence, through ment had been the con- appellee which the his ambiguous, was and parties’ divorce decree when the appellant inquired tacted the and ordering court erred her to appellant going that the circuit to the marital resi- was affirm the order of sell the residence. We for When no dence on the market sale. County Court. by appellant the Mercer Circuit to sell the action taken the was residence, appellee a peti- the filed
marital contempt, requesting that the circuit tion for I. the appellant the sell marital court order 15, 1986, August appellant On residence. appellee Aycoth were divorced. The Edward separation incorporated a order of divorce petition appellant replied division of agreement which covered the relief for alternativе re- counter-petitioned custody, support. In- property, child periods for questing the time child agreement was a cluded this settlement college, the child home from which the was providing appellant to re- the child the home which residence marital use of the resi- tain the exclusive subsequent college In a returned on breaks. dence; stated, specifically, the motion, appellant requested that if the part: court should determine residence, required was sell appellant] retain and [the
3. Melanie equitable should be distribution premises issue keep possession of the residential Park, reviewed.2 parties, situate Boulder counter-petition requesting additional per opinion is 2. Both the point curiam out that requesting review and motion Hadley, Lieving legal precedent. See by the equitable were denied distribution 604 n. 4 201 n. court, equitable only dis- but the issue of circuit appealed. issue tribution was par- Ambiguity Memoranda were submitted both in а statute other instru- concerning of susceptibility ties settlement ment consists of two or meanings uncertainty more After examination of memoranda and as to agreement, was judge informality the settlement the trial intended. Mere phraseology expression determined that the settlement or clumsiness of “vague ambiguous, nоt make it and uncertain.” The trial court does if the lan- guage imports a hearing parol set to allow evidence intention agree- certainty. offered to effect with reasonable determine the hearing parol ment. After evidence concern- Harden, Point State examining the intent of the accord, Toppings S.E. 715 law, nothing the court concluded that Rainbow, 728, 733, *4 agreement precluded the marital resi- (1997). 817, 822 dence from sold the child reach- case, provision In instant in years age. ing 18 of The court ordered the agreement relating the settlement to the appellant marital residence on unambiguous marital residеnce was clear and sale, proceeds the market for with of the as to the of division duties and the division of according sale be divided to the settlement However, equity. provision entirely was regarding silent when the residence towas be
sold.
the lower court was correct
II.
parol evidence,
to admit
in оrder to ascertain
parties.
the intent of the
“Prior or contem
When a trial court determines that an
poraneous parol
may
statements
not be ad
ambiguous
is
and construes the
contracts,
vary
mitted to
written
but
be
meaning.of
a
in the contract based
uncertain,
explain
incomplete
admitted to
evidence,
on
parties’
extrinsic
such as the
ambiguous
Syllabus,
contract terms.”
Holi
intent, our standard
“clearly
of review is
Plaza,
day
Savings
Inc. v. First Federal
Police,
erroneous.”
Fraternal Order of
Clarksburg,
Loan Association
168 W.Va.
of
Fairmont,
Lodge
City
Number 69 v.
196
of
356,
(1981)
added).
(emphasis
97, 100,
(1996).
712,
W.Va.
468 S.E.2d
715
In Fraternal
we
Order Police
noted:
of
appеllant argues
The
that the set
inquiring
If an
court concludes that an
tlement
was clear
not ambig
ambiguity
contract,
in
exists
a
the ultimate
concerning
uous
the marital residence. We
typically
resolution of it
will turn on the
agree
interpreta
that a mere difference of
parties’
Exploring
intent.
of
intent
parties
tion betwеen the
will not render a
often,
contracting parties
always,
but not
provision in
ambiguous:
a contract
marshaling
involves
facts extrinsic to the
language of
fact
the contract document.
parties
mere
not
When
do
arises,
this need
together
these facts
construction of
contract does
with
ambiguous.
it
reаsonable inferences
question
render
extractable there-
as to
superimposed
ambiguous
from are
on
ambiguous
whether a
ques-
contract is
is a
words
reveal the
in-
tion
law to
determined
discerned
court.
tent.
1,
Berkeley
Point
Co.Pub. Ser. Dist.
Police,
Fraternal Order
196
at
W.Va.
101
America,
252, 162
Corp.
v. Vitro
152W.Va.
(1996).
7,n.
additional child will not be addressed in this 709, 712 n. 1 5 n. 277 S.E.2d grant the exclusive use and occu- courts to Shelton, accord, pancy of the marital residence to one Blevins v. (1989); divorcing parties, but stated: 383 S.E.2d Fischer, 753, 755, Fischer v. 175 W.Va. extraordinary supported eases [e]xcept (1985); Stillings Stillings, by specific findings set forth the order relief, 796, 797, granting grant of the exclusive use occupancy of the marital home shall be limited to those situations where such use Here, only child of the divorced reаsonably necessary occupancy is had, beyond years age, for the rearing accommodate the of minor chil- part, most moved from the residence. We dren. clearly circuit court was cannot find that the 48-2-15(b)(4) W.Va.Code, [1986].3 ordering appellant to sell erroneous Also, had decided the the marital rеsidence. McKinney, McKinney v. case in which we stated: argument The final cases, extraordinary Except denying appel that'the circuit court erred occupancy to the exclusive use and lant’s motion for a re-examination of the marital home terminates when such use *5 distribution, equitable under her re issue of оccupancy longer necessary and is no quest for alternative relief. The decision of rearing chil- accommodate the of minor original the circuit court did not alter the [1984], 48-2-15(b)(4) dren. W.Va.Code reached between the McKinney, supra. Point 2 of Rather, appellee. considering the after and significanсe This has discussed the evidence, the the circuit court determined the being residence awarded incomplete exact terms of the settlement parent. In custodial Murredu v. Murredu agreement. Borg-Wamer See Yoho v. we held: Chemicals, 265, 266, 406 185 W.Va. S.E.2d A trial in the of sound court exercise its (1991). the circuit court provisions the оf discretion under deny appellant’s was correct to the motion. 48-2-15, may Code award the exclusive spouse property use of the home to a obtaining custody chil-
incident to III. dren. Accordingly, of the circuit court’s order Murredu, Syllabus Point Murredu v. 22,1997 is affirmed. overruled S.E.2d Patterson, grounds; Affirmed. on other Patterson portion home to one of the be for a definite furnishings reasonably necessary for such use the exclusive use set forth in the alimony ings upon home shall be limited to set forth in the order the third ments, such use and extraordinary of the exclusive use and W.Va.Code, As an incident to accommodate parties. occupancy. parties in the form of home loan install- the land contract of or child petition the household The court 48-2-15(b)(4) occupancy cases period, ending the order, subject Such use and and support, parties; together of either rearing supported by specific requiring payments, occupancy may require payments to occupancy those granting goods, [1986] the court reasonably necessary of minor children of party. at a situations the occupancy shall to modification rent, provided: of the marital furniture and relief, of the marital specific with all or a payment may grant Except payments where grаnt find- time of pursuant tion of marital erage, ital such tal domicile. for necessary ther of the party installment does not set forth in the court shall direct: rights alimony. Nothing contained in this subdivision suant to this subdivision utility property, payments under the terms abrogate party and liabilities of either or other or to this subdivision for the benefit servicеs, parties installment payments shall be deemed to be the use and then all such Payments is to be property, expenses and a third property existing contract between ei- the order that a for the distribution of of such contract. Provided, that if the court payments deemed child made to a third shall be deemed to be occupancy or is such payments charges reasonably party, party for the insurance cov- alimony, proportion or affect of the mari- or made portion distribu- a third party mar- pur- the as or of Justice, WORKMAN, dissenting: S.E.2d 187 W.Va. Yokum, Sally-Mike Properties 1998)
(Filed July I disagree majority’s opinion that with Property Agreement is am- Settlement Agreement ambiguous, not As states, biguous. clearly Agreement parole lower court should have evi- used pertinent part, “Melanie shall retain dence alter the terms of the contract. keep possession premises the residential of case, ambigui- this lower court created an Park, parties, situate Boulder Prince- ty which did not exist order to alter ton, County, Virginia_ Mercer Me- terms of the is not “It lanie shall sole have the to market and alter, province of a court to premis- to the sale said residential pervert destroy ” the clear .... es expressed unambigu- intent of Nothing Agreement provides in language ous in their written or to contract upon the home shall be sold the child’s eman- a new make or different contract for them.” cipation. The lower court concluded that Weston, Syl. pt. Payne v.
nothing
agreement precluded
in the
the mar-
upon
ital residence from
sold
the child
However,
reaching
years
аge.
I
would
appears
It
court
here determined
note that
nothing
mandat-
ambiguity
there was an
order
ed
sale of the marital
residence
render what the court believed to be a fairer
majority.
majority
child’s
the fail-
finds
Perhaps
result.
it was fairer. But that is
Agreement
ure
to state a time when
proper
not the
role оf court.
these
Both of
the residence was to be sold renders the
represented
lawyers
were
in the
However,
Agreement
ambiguous.
negotiation of
agreement,
presum-
*6
Agreement
silent
is not
on this issue. The
ably
lawyer
the husband’s
been
should have
Agreement expressly provides that Melanie
sufficiently competent tо have
in the
included
possession
shall retain
of the home and shall
im-
the court
have the sole
to market the sale of the
if
posed,
was the intention of the
home.
making
at
time of
consistently
This Court has
held that a
clean-up
Courts should not
in the
business
agreement using plain
valid written
and un
lawyers.
ambiguous language is to be
accord
enforced
plain
to its
intent and should not be
containing unambiguous
Contracts
lan-
Associates,
construed.
Hurt
See Clint
&
guage must
according
be enforced
their
Inc.,
Energy,
Inc. v. Rare Earth
198 W.Va. plain
meaning.
Property
natural
320,
(1996),
v.
529
Dawson Nor
Agreement plainly
Settlement
states
Co.,
Ry.
and Western
197
475
W.Va.
folk
Melanie has the
sole
the home
(1996),
S.E.2d 10
VanKirk v. Green Const.
on the market. The lower court’s conclusion
Co.,
(1995),
195
466
W.Va.
S.E.2d 782
Agreement compelled
sell
Melanie to
v.
Virginia Dept.
West
Watts
Health and
emancipation
the home
the child’s
Human
Human Ser
Resources/Division of
clearly contrary
unequivocal language
vices,
(1995),
White, (1995), Virginia Dept.
Akers v. West Tax and Revenue, 702 W.Va. S.E.2d Holmes, Scyoc v. W.Va. (1994), Fraley Family Dollar Marlinton, Inc., Virginia, Stores Billiter Lines, Inc.,
Melton Truck