Mary Warren Kesser v. Peter Hale Kesser

The parties entered into a marital dissolution agreement that included both a provision requiring the husband to pay a fixed amount of child support each month and a provision requiring the husband to pay 21% of bonuses and all other income as child support. After careful review, we conclude that the 21% provision is legally enforceable as part of the parties’ agreement and that the 21% provision merged into the final decree of divorce and therefore became subject to modification. Although the trial court found that a modification of both the fixed amount provision and the 21% provision was warranted, the trial court erred in failing to apply the applicable statute and the child support guidelines in effect as of the date of the hearing and in failing to consider the husband’s adoption of three children in modifying the 21% provision. The trial court properly refused to consider the husband’s capital losses in calculating child support due from his capital gains. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.