Lacke v. Lacke

Decision Date10 January 2005
Docket NumberNo. 3920.,3920.
Citation608 S.E.2d 147,362 S.C. 302
CourtSouth Carolina Court of Appeals
PartiesAmy P. LACKE, Appellant, v. Michael R. LACKE, Respondent.

Frank S. Potts, of Columbia, for appellant.

Gary Hudson Smith, III, of Aiken, for respondent.


Amy P. Lacke (Amy) initiated this action against Michael R. Lacke (Michael) to enforce a Joint Parenting Agreement (the agreement) entered into by the parties and made part of an Illinois court's order of divorce. Amy appeals a South Carolina court's construction and enforcement of the agreement. We affirm in part, reverse in part, and remand.


Amy and Michael were divorced by decree of an Illinois court filed in February 1990. The Illinois court incorporated the Joint Parenting Agreement into its order. The following provision encompassed the parties' duties regarding college funding for their children:

The parties shall utilize their best efforts for the payment of the children's college education, which obligation is predicated upon the scholastic aptitude of the child and the parties current respective financial abilities. The decision affecting the education of the child, including the choice of college or other institution, shall be made jointly by the parties and shall consider the expressed preference of the child, but neither party shall unreasonably withhold his or her consent to the expressed preference of the child. Said college tuition shall be subject to the children's application for grants and scholarships and both parties shall timely cooperate in completing any financial aid forms to secure any said funds for higher education.

Amy brought this action to enforce Michael's obligation to contribute to their daughter Laura's college education. At the time of trial, Laura had completed approximately two years of college. During the hearing, it was determined Michael had only contributed approximately $1,550 toward Laura's education. Amy testified she contributed roughly $8,300 toward Laura's education expenses, although some of these payments were for automobile expenses incurred by Laura. According to their financial declarations, Michael and Amy had gross incomes of $88,392 and $46,440 per year, respectively. Michael previously made as much as $140,000 per year. Additionally, he makes child support payments for two other children from his second and third marriages.

The trial court found the provision requiring the parties to pay for college was ambiguous, and therefore, considered the parties' intent in making the agreement to determine the parties' responsibilities and obligations thereunder. The court concluded: (1) transportation expenditures were not part of the expenses contemplated by the agreement; (2) Laura was obligated to apply for loans; (3) the parties were only required to pay toward Laura's expenses after she applied for loans and after her income had been considered; (4) Michael and Amy were to bear equally any amount owed for Laura's education; and (5) Michael was to reimburse Amy his share of the expenses within thirty days.


In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598 (Ct.App.2004) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992)). However, this broad scope of review does not require us to disregard the family court's findings. Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Nor must we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996)

(ruling that because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to the family court's findings where matters of credibility are involved).

I. Did the trial court err in construing the Joint Parenting Agreement?
A. Did the trial court err in finding the agreement is ambiguous?
B. Did the trial court err in finding transportation costs are not college expenses under the agreement?
C. Did the trial court err in finding the agreement requires Laura to incur loans and allocate her income toward her college expenses?
D. Did the trial court err in finding the agreement requires Amy and Michael to share Laura's education expenses equally?
II. Did the trial court err in allowing Michael thirty days in which to reimburse Amy for any amount owed?
III. Did the trial court err in failing to award Amy attorney's fees?


I. Construction of the Agreement

A parent may contractually obligate himself to pay educational expenses beyond the age of majority. Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994). Construction of such an agreement is a matter of contract law. Id. Generally, where an agreement is clear and capable of legal interpretation, the court's only function is to interpret its lawful meaning, discover the intention of the parties as found within the agreement, and give effect to it. Heins v. Heins, 344 S.C. 146, 543 S.E.2d 224 (Ct.App.2001); Bogan v. Bogan, 298 S.C. 139, 378 S.E.2d 606 (Ct.App.1989). When an agreement is unambiguous, effect should be given according to the ordinary and popular sense of the words employed therein. See, e.g., Warner v. Weader, 280 S.C. 81, 311 S.E.2d 78 (1983)

(providing that an unambiguous contract must be construed according to the terms which the parties have used, to be taken and understood in their plain, ordinary, and popular sense); see also Heins, 344 S.C. at 158,

543 S.E.2d at 230 ("The court must enforce an unambiguous contract according to its terms, regardless of the contract's wisdom or folly, or the parties' failure to guard their rights carefully.").

However, where an agreement is ambiguous, the court should seek to determine the parties' intent. Ebert v. Ebert, 320 S.C. 331, 465 S.E.2d 121 (Ct.App.1995); Mattox v. Cassady, 289 S.C. 57, 344 S.E.2d 620 (Ct.App.1986); see also Lindsay v. Lindsay, 328 S.C. 329, 491 S.E.2d 583 (Ct.App.1997)

(explaining unambiguous marital agreements will be enforced in accordance with their terms, while ambiguous agreements will be examined in same manner as other agreements in order to determine intention of parties). "A contract is ambiguous when it is capable of more than one meaning or when its meaning is unclear." Smith-Cooper v. Cooper, 344 S.C. 289, 295, 543 S.E.2d 271, 274 (Ct.App.2001). Construction of an ambiguous contract is a question of fact. Skull Creek Club Ltd. P'ship v. Cook & Book, Inc., 313 S.C. 283, 437 S.E.2d 163 (Ct.App.1993).

A. Ambiguity

In McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239 (1993), the South Carolina Supreme Court found "the words `all college expenses,' without more, [are] patently ambiguous." McDuffie, 313 S.C. at 400, 438 S.E.2d at 241. In the instant case, the first clause of the original agreement is patently ambiguous. It states: "The parties shall utilize their best efforts for the payment of the children's college education, which obligation is predicated upon the scholastic aptitude of the child and the parties current respective financial abilities." It fails to define college education, or delineate which expenses should be paid for by the parties. Accordingly, we agree with the trial court that the agreement is ambiguous as to the expenses encompassed by the phrase "college education." The court properly sought to determine the intent of the parties. See Mattox v. Cassady, 289 S.C. 57, 344 S.E.2d 620 (Ct.App.1986)


B. Expenses Covered

Amy contends the trial court erred in finding transportation costs were not included as college education expenses. We disagree. The agreement is vague as to which expenses qualify as "college education" costs. McDuffie, 313 S.C. 397,438 S.E.2d 239, illustrates when transportation costs may be covered by an otherwise ambiguous agreement to pay for a child's college education. In McDuffie, the court determined that transportation was not an expense intended to be covered by the father's agreement "to pay all expenses associated with [the] college education of any of said children. . . ." Id. at 398, 438 S.E.2d at 240. The court noted that "in her testimony, Mother defined college expenses as `tuition, room, and board. . . books or supplies,' and advised that she was willing to pay for transportation." Id. at 400, 438 S.E.2d at 241. Thus, the court gave credence to the parties' testimony of their intent in making the agreement.

Here, there is no evidence establishing the parties' intent regarding the inclusion of transportation as a college expense. During cross-examination, Amy professed:

Q. But you agree with Mr. Lacke — he says nothing about covering transportation expenses?
A. I disagree.
Q. So, where it says payment for the children's college education your understanding of that is to mean transportation and everything else?
A. There are many other things that I've read about the law in Illinois and it always includes transportation as part of that.
Q. But that's not in this agreement, is it?
A. It is in that agreement. I think it is implicit in that agreement.

Critically, this discussion does not edify as to the parties' intent in signing the agreement — it only demonstrates Amy's desire that transportation now be covered and her misunderstanding of Illinois law.

In her brief, Amy points to 750 Ill. Comp. Stat. 5/513 as grounds for inclusion of transportation costs in education expenses. The statute provides, in relevant part:

The educational expenses may

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