RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1181-MR
BRENDA M. WHITFILL APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 16-CI-00051
DENNIS R. WHITFILL APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.
KAREM, JUDGE: Brenda M. Whitfill (“Brenda”) appeals from the Breckinridge
Circuit Court’s order modifying the amount of child support to be paid by Brenda’s
ex-husband, Dennis R. Whitfill (“Dennis”). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brenda and Dennis married on May 10, 1996, in Breckinridge
County, Kentucky, and separated in December 2015. Brenda filed a verified petition for dissolution on March 3, 2016 (the “Petition”). The parties had three
(3) minor children at the time Brenda filed the Petition – B.M.W., who was born
on April 15, 2000; L.R.W., who was born on September 15, 2005; and C.J.W.,
who was born on June 12, 2007.
The parties signed a Property Settlement Agreement (the
“Agreement”) on September 13, 2017, which the circuit court incorporated into its
Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage
entered on November 9, 2017. In the Agreement, the parties agreed that they
would have joint custody of the parties’ three (3) minor children, with Brenda
named as the primary residential custodian. Additionally, the Agreement
contained the following provisions:
1. REAL PROPERTY. [Brenda] shall reside in the marital residence . . . until such time as C.J.W. turns 19 years [of] age, or graduates from high school, whichever first occurs.
When C.J.W. reaches the age of 19 years or graduates, the parties will attempt to reach an agreement regarding disposition of the marital residence. If they are unable to do so, then either party may move the Court for a resolution. . . .
For responsibility of payment of the mortgage, please see paragraph 5 herein.
...
5. CHILD SUPPORT. [Dennis] shall pay the sum of $1,282.24 per month. [Dennis] will pay the mortgage
-2- from that amount each month and the remainder will be paid to [Brenda] in cash. [Dennis] agrees not to seek a modification of child support upon B.M.W. reaching [sic] an age where child support is no longer required. Child support shall continue for each child until . . . each child reaches the age of eighteen years, or the age of 19 so long as that child is still a student in high school. [Dennis] shall be allowed to take the mortgage interest deduction for the house payments made hereunder each year that child support is due.
On September 22, 2023, Dennis filed a motion with the circuit court
requesting to modify and recalculate the child support amount based on the fact
that the parties’ middle child, L.R.W., had reached the age of majority.
Brenda also filed a motion to modify child support on October 11,
2023, requesting that the circuit court conduct a new hearing pursuant to Kentucky
Revised Statute (“KRS”) 403.213(2) based on her belief that Dennis’s current
gross monthly income would cause the child support amount Dennis owed to
increase by more than fifteen percent (15%).
The Domestic Relations Commissioner (“DRC”) held a hearing on
December 7, 2023, on the parties’ motions. Thereafter, the DRC filed a report on
January 18, 2024, recommending that the circuit court modify Dennis’s child
support payments, per the guidelines, to $673.69 per month, retroactively to
September 22, 2023, the date Dennis filed his motion to modify child support.
Brenda filed exceptions to the DRC’s report on January 28, 2024. The exceptions
did not dispute the amount of child support recommended by the DRC or the
-3- amount of the parties’ incomes. Rather, Brenda only raised the issue of whether
Dennis was still obligated to pay the monthly mortgage on the marital residence.
Specifically, Brenda claimed that Dennis should pay a combined monthly amount
of $1,500.19, comprising the monthly mortgage payment and the modified child
support amount. However, the circuit court confirmed the DRC’s report in its
entirety by order entered on February 9, 2024.
Thereafter, on March 11, 2024, Brenda filed a motion for the circuit
court to hold Dennis in contempt for his alleged failure to pay his child support
obligations. Dennis contended that he had continued to pay the entire mortgage
amount, but no longer paid Brenda any remainder because the mortgage payment
was larger than the modified amount of child support Dennis was obligated to pay.
Following a hearing, the circuit court entered an order on May 1, 2024, denying
Brenda’s motion to hold Dennis in contempt and “suggest[ing] the mortgage
payment amount and child support be placed before the [DRC] for clarification
regarding the mortgage amount and any related matters.”
On May 15, 2024, Brenda filed a motion to determine child support
arrearage amounts, stating that she had not received a child support payment since
February 2024 and that the amount she received in February was only $455.74.
Following a hearing before the DRC regarding the determination of who was
responsible for the mortgage payments, the DRC issued a report on September 3,
-4- 2024, recommending that Dennis pay a monthly sum of $673.69 in child support.
Further, the DRC’s report stated that Brenda, “who resides in the marital residence,
shall continue to be responsible for the payment of the mortgage note related to the
residence from her funds as she has under the [Agreement] since 2017.” Brenda
filed exceptions to the DRC’s report; however, the circuit court confirmed the
DRC’s report in full on September 24, 2024. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
Regarding matters of child support, the circuit court has broad
discretion, and this Court ordinarily will not reverse a circuit court’s decision
regarding support unless it abused its discretion. Wilhoit v. Wilhoit, 521 S.W.2d
512, 513 (Ky. 1975) (citation omitted). “The test for abuse of discretion is whether
the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999) (citations omitted).
Moreover, “[i]t is well established that construction and interpretation
of a written instrument are questions of law for the court. We review questions of
law de novo and, thus, without deference to the interpretation afforded by the
-5- circuit court.” Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998) (citations
omitted).
2. Discussion
On appeal, Brenda contends that the mortgage payments were not
child support but rather a marital debt. Thus, she argues that Dennis should
continue making the mortgage payment as well as the modified child support
amount of $673.69. We must first determine whether, under the Agreement, the
mortgage payments were a form of child support or property settlement. If the
mortgage payments were child support, then they could be modified under KRS
403.213(1) “only upon a showing of a material change in circumstances that is
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1181-MR
BRENDA M. WHITFILL APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 16-CI-00051
DENNIS R. WHITFILL APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.
KAREM, JUDGE: Brenda M. Whitfill (“Brenda”) appeals from the Breckinridge
Circuit Court’s order modifying the amount of child support to be paid by Brenda’s
ex-husband, Dennis R. Whitfill (“Dennis”). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brenda and Dennis married on May 10, 1996, in Breckinridge
County, Kentucky, and separated in December 2015. Brenda filed a verified petition for dissolution on March 3, 2016 (the “Petition”). The parties had three
(3) minor children at the time Brenda filed the Petition – B.M.W., who was born
on April 15, 2000; L.R.W., who was born on September 15, 2005; and C.J.W.,
who was born on June 12, 2007.
The parties signed a Property Settlement Agreement (the
“Agreement”) on September 13, 2017, which the circuit court incorporated into its
Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage
entered on November 9, 2017. In the Agreement, the parties agreed that they
would have joint custody of the parties’ three (3) minor children, with Brenda
named as the primary residential custodian. Additionally, the Agreement
contained the following provisions:
1. REAL PROPERTY. [Brenda] shall reside in the marital residence . . . until such time as C.J.W. turns 19 years [of] age, or graduates from high school, whichever first occurs.
When C.J.W. reaches the age of 19 years or graduates, the parties will attempt to reach an agreement regarding disposition of the marital residence. If they are unable to do so, then either party may move the Court for a resolution. . . .
For responsibility of payment of the mortgage, please see paragraph 5 herein.
...
5. CHILD SUPPORT. [Dennis] shall pay the sum of $1,282.24 per month. [Dennis] will pay the mortgage
-2- from that amount each month and the remainder will be paid to [Brenda] in cash. [Dennis] agrees not to seek a modification of child support upon B.M.W. reaching [sic] an age where child support is no longer required. Child support shall continue for each child until . . . each child reaches the age of eighteen years, or the age of 19 so long as that child is still a student in high school. [Dennis] shall be allowed to take the mortgage interest deduction for the house payments made hereunder each year that child support is due.
On September 22, 2023, Dennis filed a motion with the circuit court
requesting to modify and recalculate the child support amount based on the fact
that the parties’ middle child, L.R.W., had reached the age of majority.
Brenda also filed a motion to modify child support on October 11,
2023, requesting that the circuit court conduct a new hearing pursuant to Kentucky
Revised Statute (“KRS”) 403.213(2) based on her belief that Dennis’s current
gross monthly income would cause the child support amount Dennis owed to
increase by more than fifteen percent (15%).
The Domestic Relations Commissioner (“DRC”) held a hearing on
December 7, 2023, on the parties’ motions. Thereafter, the DRC filed a report on
January 18, 2024, recommending that the circuit court modify Dennis’s child
support payments, per the guidelines, to $673.69 per month, retroactively to
September 22, 2023, the date Dennis filed his motion to modify child support.
Brenda filed exceptions to the DRC’s report on January 28, 2024. The exceptions
did not dispute the amount of child support recommended by the DRC or the
-3- amount of the parties’ incomes. Rather, Brenda only raised the issue of whether
Dennis was still obligated to pay the monthly mortgage on the marital residence.
Specifically, Brenda claimed that Dennis should pay a combined monthly amount
of $1,500.19, comprising the monthly mortgage payment and the modified child
support amount. However, the circuit court confirmed the DRC’s report in its
entirety by order entered on February 9, 2024.
Thereafter, on March 11, 2024, Brenda filed a motion for the circuit
court to hold Dennis in contempt for his alleged failure to pay his child support
obligations. Dennis contended that he had continued to pay the entire mortgage
amount, but no longer paid Brenda any remainder because the mortgage payment
was larger than the modified amount of child support Dennis was obligated to pay.
Following a hearing, the circuit court entered an order on May 1, 2024, denying
Brenda’s motion to hold Dennis in contempt and “suggest[ing] the mortgage
payment amount and child support be placed before the [DRC] for clarification
regarding the mortgage amount and any related matters.”
On May 15, 2024, Brenda filed a motion to determine child support
arrearage amounts, stating that she had not received a child support payment since
February 2024 and that the amount she received in February was only $455.74.
Following a hearing before the DRC regarding the determination of who was
responsible for the mortgage payments, the DRC issued a report on September 3,
-4- 2024, recommending that Dennis pay a monthly sum of $673.69 in child support.
Further, the DRC’s report stated that Brenda, “who resides in the marital residence,
shall continue to be responsible for the payment of the mortgage note related to the
residence from her funds as she has under the [Agreement] since 2017.” Brenda
filed exceptions to the DRC’s report; however, the circuit court confirmed the
DRC’s report in full on September 24, 2024. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
Regarding matters of child support, the circuit court has broad
discretion, and this Court ordinarily will not reverse a circuit court’s decision
regarding support unless it abused its discretion. Wilhoit v. Wilhoit, 521 S.W.2d
512, 513 (Ky. 1975) (citation omitted). “The test for abuse of discretion is whether
the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999) (citations omitted).
Moreover, “[i]t is well established that construction and interpretation
of a written instrument are questions of law for the court. We review questions of
law de novo and, thus, without deference to the interpretation afforded by the
-5- circuit court.” Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998) (citations
omitted).
2. Discussion
On appeal, Brenda contends that the mortgage payments were not
child support but rather a marital debt. Thus, she argues that Dennis should
continue making the mortgage payment as well as the modified child support
amount of $673.69. We must first determine whether, under the Agreement, the
mortgage payments were a form of child support or property settlement. If the
mortgage payments were child support, then they could be modified under KRS
403.213(1) “only upon a showing of a material change in circumstances that is
substantial and continuing.” If the mortgage payments were part of the property
settlement, then they could only be “revoked or modified” if “the court finds the
existence of conditions that justify the reopening of a judgment under the laws of
this state.” KRS 403.250(1).
Turning to our analysis of the Agreement, “[w]hen no ambiguity
exists in the contract, we look only as far as the four corners of the document to
determine the parties’ intentions.” 3D Enterprises Contracting Corp. v. Louisville
and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 448 (Ky. 2005)
(citation omitted). “The fact that one party may have intended different results,
however, is insufficient to construe a contract at variance with its plain and
-6- unambiguous terms.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d
381, 385 (Ky. App. 2002) (citation omitted).
In this case, after examining the four corners of the Agreement, we
believe that the parties originally intended that the portion of the $1,282.24 amount
Dennis paid to the loan servicer was a form of child support. Section 5 of the
Agreement was titled “CHILD SUPPORT,” and it stated that Dennis would pay
the mortgage from the $1,282.24 amount each month directly to the loan servicer.
The Agreement then provided that Dennis would pay the remainder to Brenda in
cash. Thus, it appears that the parties’ intent was for the payments Dennis made to
the loan servicer to be a part of his overall child support obligation, not an amount
in addition to his child support obligation. Based upon the distinctive intertwining,
consolidation, and linkage of the mortgage payment to child support throughout
these proceedings, we construe the mortgage payment as a child support issue.
Therefore, we must determine whether the requirements for
modifying a child support award have been met in this case. In a dissolution
proceeding where the parties have entered into a settlement agreement, the terms
regarding child support are not binding on the trial court. KRS 403.180(2).
Moreover, as already discussed, a child support award may only be modified under
KRS 403.213(1) “upon a showing of a material change in circumstances that is
substantial and continuing.”
-7- Furthermore, if a trial court applies the guidelines outlined in KRS
Chapter 403 to the parties’ circumstances at the time the moving party files his or
her motion and if the result under the guidelines is “equal to or greater than a
fifteen percent (15%) change in the amount of support due per month[,]” then the
moving party is entitled to a rebuttable presumption that “a material change in
circumstances” has occurred. KRS 403.213(2).
In this case, neither party disputed that the original child support
payment owed by Dennis was $1,282.24 per month and that the modified amount
under the guidelines was $673.69 per month. Thus, under KRS 403.213(2),
Dennis was entitled to a rebuttable presumption that a material change in
circumstances had occurred, which Brenda failed to rebut. As a result, Dennis’s
motion for modification and recalculation of his child support amount met the
requirements of KRS 403.213(1), and we can discern no error by the circuit court.
Further, we decline to address any of Brenda’s arguments regarding
any possible arrearages Dennis may owe. Brenda only appealed the circuit court’s
order confirming the DRC’s September 3, 2024, report, which did not make any
findings or legal conclusions regarding any possible arrearages owed. “The
appellate court reviews for errors, and a nonruling is not reviewable when the issue
has not been presented to the trial court for decision.” Turner v. Commonwealth,
460 S.W.2d 345, 346 (Ky. 1970).
-8- CONCLUSION
For the foregoing reasons, we affirm the Breckinridge Circuit Court’s
order confirming the DRC’s September 3, 2024, report.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Stephen G. Hopkins Douglas P. Vowels Hardinsburg, Kentucky Brandenburg, Kentucky
-9-