Gore v. White

• Decision Date: 04 May 2012
• Docket Number: 2100636.
• Citation: 96 So.3d 834
• Parties: Curtis GORE v. Patricia (Gore) WHITE. Patricia (Gore) White v. Curtis Gore.
• Court: Alabama Court of Civil Appeals

96 So.3d 834

Curtis GORE

v.Patricia (Gore) WHITE.

Patricia (Gore) White

v.Curtis Gore.

2100636.

Court of Civil Appeals of Alabama.

May 4, 2012.

Nicholas A. Jones of Blanchard Law Offices, Montgomery, for appellant/cross-appellee Curtis Gore.

Terrie S. Biggs of Capell & Howard, P.C., Montgomery, for appellee/cross-appellant Patricia (Gore) White.

BRYAN, Judge.

Curtis Gore (“the former husband”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) that ordered him to pay postminority-educational-support arrears and that modified his postminority-educational-support obligation. Patricia White (“the former wife”) cross-appeals from the same judgment insofar as the trial court modified the former husband's postminority-educational-support obligation and failed to award her a greater amount of attorney fees.

Procedural History

The parties were divorced by the trial court in January 2004, and their divorce judgment incorporated an agreement of the parties. Pursuant to that agreement, the former wife was awarded primary physical custody of the parties' daughter (“the child”), the only remaining minor child of the parties. The pertinent parts of the parties' agreement provided as follows:

“4.(E) The parties agree to be responsible on a pro rata basis, meaning the percentage each contributed to a calculation of joint income, for the college education expenses of the ... child, including tuition, room and board, books and fees....

“....

“10. Contempt: Should either party fail to abide by the terms of this agreement or take some action which amount[s] to contempt of the court, and it becomes necessary for the other party to seek the relief of the court to enforce his or her rights under this agreement, then the party seeking relief shall be entitled to reimbursement of his or her attorneys fees and other costs.”

On May 2, 2007, the former husband filed a petition to modify his child-support obligation based on an alleged decrease in his income. The former wife filed an answer and a counterclaim requesting modification of certain terms of the divorce judgment. The former wife also requested that the former husband pay a pro rata share of expenses incurred by the child for summer college courses that she had taken before she graduated from high school. The parties entered into a second agreement that provided, in pertinent part:

“4. The former wife agrees that if [the child] wants to attend any other pre-high school graduation college courses, that the former husband will be consulted and will have the right to approve them before he is financially responsible for paying a pro rata share of the costs; and

“5. When [the child] graduates from high school, the former wife and [the] child will consult with the former husband concerning the child's college plans, and will do so in sufficient time so that he may seek a legal remedy if he strongly disagrees with [the child]'s decision.

“6. All other terms of the [divorce judgment] not modified herein shall remain in full force and effect.”

(Emphasis added.)

The parties' agreement was incorporated into a judgment modifying the parties' divorce judgment (“the modification judgment”) on November 20, 2007.

The record indicates that the child began attending the University of Texas in fall 2009. On September 18, 2009, the former wife filed a show-cause petition seeking to hold the former husband in contempt for his failure to pay his pro rata share of the child's college expenses, among other alleged violations of the divorcejudgment and the modification judgment. The former wife sought an award of attorney fees based on paragraph 10 of the divorce judgment. ¹

On January 19, 2010, the former husband filed an answer to the former wife's contempt petition and a counterclaim to modify the divorce judgment and the modification judgment. He alleged that there had been a material change in circumstances since the entry of the last judgment because the child had chosen to attend an out-of-state college. He alleged that the cost of attending the out-of-state college was “exponentially higher than any in-state public institution and was otherwise not contemplated by the former husband when he signed the previous agreements.” The former husband further alleged that he did not have the funds necessary to contribute to the child's out-of-state college expenses, and he asked the trial court to modify the terms of the previous judgments to “reflect a more appropriate postminority support payment.”

The trial court conducted an ore tenus hearing on May 3, 2010, and August 27, 2010. On September 7, 2010, the trial court entered an order that stated, in pertinent part, “that [paragraph] number five ... in the [modification judgment] is vague and overly broad, and further, that it contains a latent ambiguity and is therefore due to be modified.”

On November 23, 2010, the trial court conducted a hearing on the former husband's petition to modify based on a material change in circumstances regarding his ability to pay the child's out-of-state college expenses. On December 21, 2010, the trial court entered a judgment that made the following specific findings of fact and legal conclusions:

“The former wife contends that[,] at the time of the divorce, the former husband agreed to pay his pro rata share of the college education expenses of the ... child including tuition, room and board, books and fees. The former wife also contends that in the settlement agreement of the modification petition, the parties agreed that the ... child would consult with the former husband concerning [the child]'s college plans in sufficient time that the former husband may seek legal remedy if he strongly disagreed with [the child]' s decision. [The] former wife contends that throughout [the child]'s senior year in high school, she and [the child] consulted with [the] former husband regarding college applications and the selection process. Further, [the child] notified her father[, the former husband,] well in advance of her high school graduation of her selection of a college choice of the University of Texas. The former wife requested in writing that the former husband seek his legal remedy pursuant to the modification [judgment] if he disagreed with [the child]'s college choice. Rather than seek his legal remedy, the former husband simply refused to pay his pro rata [share] (87%) of [the child]'s college expenses and limited his contribution to that of his pro rata share (87%) of in-state college tuition costs.....

“Evidence was clear that the former wife's Petition to Show Cause filed September 18, 2009, was the result of the former husband's refusal to seek legal remedy as contemplated in the parties' modification agreement. Evidence was further clear that the former wife attempted service on the former husband by certified mail, which the former husband never picked up. Further, the former wife's attempts to serve the former husband by process server were not successful. The former husband was served following the December 7, 2009, order granting former wife's Motion for Service of Process by Ordinary Mail, and former husband filed his responsive pleading more than four months after the former wife filed her Petition to Show Cause. Such a delay resulted in delay of this matter being heard and additional attorney's fees incurred by the former wife. Evidence is clear that the parties' settlement agreement incorporated in the [divorce judgment] included no restrictions regarding the choice of college made by the ... child restricted to that of an in-state public institution. Further, the evidence was clear that the recognized pro rata share of the former husband's contribution to the minor child's college expenses since the parties' 200[4] divorce was 87% and the former wife 13%. Clearly, the former husband's income has increased since the time of divorce as well as the 2007 modification.

“Evidence was also clear that the former husband purchased a residence in 2006, prior to the 2007 modification, said residence purchase price being $563,800.00. Evidence was further clear that the former husband purchased a vehicle in 2006, said purchase price of the vehicle being in excess of $30,000.00.

“... Evidence shows that in the fall 2009 semester, the ... child's actual college expenses were $20,246.45. The former husband's pro rata share obligation of those college expenses should have been $17,614.41. However, the former husband only contributed $8,318.95 for the fall of 2009. The difference between the amount the former husband paid toward the 2009 fall semester and the pro rata 87% share was $9,295.46.

“For the spring 2010 semester, the minor child's actual expenses were $21,913.02. The former husband's 87% pro rata share of that amount should have been $19,064.33. The former husband's actual contribution was $8,618.94, leaving a difference of $10,445.39.

“For the 2010 fall semester, evidence showed that the minor child's actual expenses were $20,935.60, to which the former Husband's 87% pro rata share would have been $18,213.97. Evidence shows that the former husband actually contributed $8,818.94, leaving a difference of $9,395.03.

“The former wife showed evidence that she has incurred attorney's fees as of the November 23, 2010 trial date in the amount of $18,901.41. [The f]ormer wife's attorney's fees began during the minor child's senior year in high school in attempts to encourage the former husband to seek legal remedy if he disagreed with [the child]'s college choice and continued through the date of trial, including efforts to have the former husband served with the Petition to Show Cause.

“In its September 7, 2010, order, this Court found a latent ambiguity existed in the modification agreement, and therefore, will modify former husband's pro rata share of the ... child's college tuition and expenses....

“The remaining issues [for] the Court to decide were the issue of...