Kelly v. Kelly
Decision Date | 08 September 1992 |
Docket Number | No. 1873,1873 |
Citation | 310 S.C. 299,423 S.E.2d 153 |
Court | South Carolina Court of Appeals |
Parties | Charles Patrick KELLY, Respondent, v. Diane W. KELLY, Appellant. . Heard |
Kenneth C. Porter and Robert M. Rosenfeld, Greenville, for appellant.
Timothy L. Brown, Greenville, for respondent.
Diane W. Kelly appeals a family court order directing her to contribute toward the college expenses of one of her children and to convey her half of the marital home to her ex-husband, Charles Patrick Kelly, in exchange for $5,000. She also appeals the family court's denial of attorney fees. We reverse and remand.
1. Based on our view of the preponderance of the evidence [Brooks v. Brooks, 289 S.C. 352, 345 S.E.2d 510 (Ct.App.1986) ], we find the family court erred in requiring Mrs. Kelly to contribute toward the college expenses of the parties' emancipated son Andrew.
We are not convinced Mrs. Kelly has the financial ability to help pay for Andrew's college education. When the family court heard this matter, Mrs. Kelly, according to her testimony, was unemployed and under a doctor's care. See 59 Am.Jur.2d Parent and Child § 47, at 192-93 (1987) ().
More importantly, we are not persuaded Andrew cannot go to college without his mother's help. In fact, he was attending college, living in his father's home, and working part-time at the time of trial. He also had a car.
Of particular importance to us here is the fact that Andrew made no attempt whatever to apply for educational loans. See McDuffie v. McDuffie, --- S.C. ----, 418 S.E.2d 331 (Ct.App.1992) ( ); Kirsch v. Kirsch, 299 S.C. 201, 383 S.E.2d 254 (Ct.App.1989) ( ); cf. Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) ( ); Nicholson v. Lewis, 295 S.C. 434, 369 S.E.2d 649 (Ct.App.1988) ( ); Hughes v. Hughes, 280 S.C. 388, 313 S.E.2d 32 (Ct.App.1984) ( ).
We find no merit in Mr. Kelly's assertion that Mrs. Kelly agreed to help with Andrew's college expenses. He points to Mrs. Kelly's pre-trial deposition in which she said she would be willing to give Andrew support for college expenses provided he continued to go to school.
Although it is true that a parent can obligate himself or herself beyond the support requirements imposed by law [Ratchford v. Ratchford, 295 S.C. 297, 368 S.E.2d 214 (Ct.App.1988) ], a parent's stated willingness to assist a child with college expenses cannot be twisted into a binding agreement to pay those expenses.
2. We agree with Mrs. Kelly's contention that the family court erred in requiring the parties to dispose of marital property in a manner inconsistent with the terms and provisions of the divorce decree.
The family court in the present action did not have subject matter jurisdiction to modify the division of the marital property because the question of how to apportion the marital property had been settled in the original divorce decree, an order neither party appealed. See S.C.Code Ann. § 20-7-472 (Supp.1991) (); Thompson v. Ballentine, 298 S.C. 289, 379 S.E.2d 896 (1989) (citing the statute); 24 Am.Jur.2d Divorce and Separation § 958, at 945-46 (1983) (); 27C C.J.S. Divorce § 594, at 123 (1986) ();
We therefore reverse the family court's order concerning equitable...
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