McKinney v. McKinney

• Decision Date: 02 January 1980
• Docket Number: No. 21104,21104
• Citation: 261 S.E.2d 526,274 S.C. 95
• Court: South Carolina Supreme Court
• Parties: Julia R. McKINNEY, Appellant, v. S. J. McKINNEY, Respondent.

Page 526

261 S.E.2d 526

274 S.C. 95

Julia R. McKINNEY, Appellant, v. S. J. McKINNEY, Respondent.

No. 21104.

Supreme Court of South Carolina.

Jan. 2, 1980.

[274 S.C. 96] William S. Tetterton, Camden, for appellant.

Edward M. Royall, Camden, for respondent.

GREGORY, Justice:

Appellant Julia R. McKinney was granted a divorce from respondent S. J. McKinney. The Family Court incorporated a property settlement agreement into the decree. This is an appeal from that portion of the decree denying appellant the further sought relief of alimony and attorney fees. We reverse and remand.

The parties were married in July of 1955 and are the natural parents of four children. Subsequent to their separation in late February of 1977, appellant and respondent signed with the advice of separate counsel an agreement entitled "Property Settlement Agreement," the terms of which are hereinafter set forth. It is this agreement which gives rise to the issues on this appeal.

Appellant's petition alleged desertion on the part of respondent and sought a final divorce as well as custody of the children At the hearing appellant took the position that the agreement validly disposed of the issues of custody, child support and marital property settlement, but that it did not touch on the remaining issue of alimony nor did it conclude the matter of attorney fees.

alimony, child support and attorney fees, both Pendente lite and permanently. Respondent's answer admitted desertion but asserted that the parties had entered into the Property Settlement Agreement which bound them to its terms regarding support, lump sum alimony, attorney fees, custody and other related matters.

The trial judge concurred with respondent that the agreement settled all issues arising out of the marital relationship, including alimony and attorney fees, and barred testimony as to these issues.

We encourage litigants to reach an extrajudicial agreement on these marital issues. However, as we held in the recent case of Fischl v. Fischl, 272 S.C. 297, 251 S.E.2d 743 (1979), even a plain, unambiguous agreement is nevertheless finally subject to the duty of the Family Court judge to rule upon its fairness. 27A C.J.S. Divorce § 234; see 24 Am.Jur.2d, Divorce and Separation, § 906. But as with any other contract, where the language of the agreement is susceptible of more than one interpretation, the Family Court judge must first ascertain the intention of the parties by examining the extrinsic circumstances surrounding the agreement and the parties, Langston v. Niles, 265 S.C. 445, 219 S.E.2d 829 (1975), before ruling on its fairness.

The agreement in its entirety provides as follows:

STATE OF SOUTH CAROLINA

County of Kershaw.

PROPERTY SETTLEMENT AGREEMENT

This agreement is made and entered into this 11th day of March, 1977, by and between S. J. McKinney, hereinafter referred to as "Husband", and Julia R. McKinney, hereinafter referred to as "Wife"; Witnesseth:

Whereas, the parties hereto are husband and wife, having been married on or about July 9, 1955, at Greenville, South Carolina; and,

Whereas, Due to irreconcilable differences the husband has elected to leave the residence of the parties on or about February 26, 1977; and

Whereas, The parties are desirous of entering into an agreement for the proper maintenance and support of the children, both before eighteen and while in college; and also for a proper property settlement between the parties;

Now, therefore, in consideration of the mutual promises of each of the parties hereto it is agreed as follows:

1. That from and after this date, it shall be proper for each of the parties hereto to live separate and apart from the other, free of the marital control, conjugal rights and demands of the other and each party agrees to refrain from bothering, molesting or compelling the other to do anything against his or her will not herein especially set forth.

2. That from March 1, 1977, the husband agrees to pay to the wife as support for the children under eighteen (18) the following sums: $800.00 per month for three children; $600.00 per month for two children; and $400.00 per month for one child. These payments shall extend until August 31st of the year in which each child reaches her eighteenth birthday, unless she does not plan to attend college, has married or has otherwise been emancipated. Payments as set forth above will be made to the wife in two monthly installments, one-half (1/2) of the monthly payment on the 1st of each month and one-half (1/2) thereof on the 15th day of each month. These payments shall become effective the 1st day of March, 1977.

3. The husband agrees that for those children over eighteen (18) years of age who have not yet reached their twenty-third (23) birthday, and who are students working toward a degree in a college, he will pay all of the tuition, dormitory, cafeteria of said school for regular meal tickets, laboratory fees and book fees for the child at a South Carolina state supported college or state supported tech school or will provide the same basic fees at a rate comparable to these fees in effect at the University of South Carolina at the time of the child's entrance to college at a private institution, but no more than actual cost of these fees, whichever is less, for a total of eight semesters or equivalent. These expenses will be paid by the husband as they are due. In addition, the husband agrees to pay to said child an allowance of $35.00 per month on the 15th day of each month during the school year. If a child marries during college, but continues to go to college on a regular basis working toward a degree, the same fees will be paid to the 23rd birthday.

4. The husband agrees to provide medical and dental insurance through the duPont plan for the children as long as they are claimed by him on his tax returns. All other medical, dental and prescription drugs not covered by insurance will also be paid by him as long as they are claimed by him on his tax returns; however, any optional or cosmetic surgery or procedures or treatments must be approved by him in advance for him to be obligated for payment.

5. The husband will be permitted to claim the children on his income tax returns as dependents so long as he pays child support as herein provided. The wife agrees to file a joint return with the husband for the year 1977, but neither party will incur any more tax liability than if he or she had filed separately.

6. The husband agrees to execute a deed of all of his interest in the residence at the corner of Union and Sarsfield to the wife at the time of this agreement, free of any liens or encumbrances, but it is hereby agreed between the parties that the deed shall be delivered to G. Thomas Cooper, Jr., Attorney, in trust, before recording, to be held in escrow. Should a divorce occur between the parties during eighteen months from date, then G. Thomas Cooper, Jr. is authorized to deliver the deed to the wife for recording. Should the husband die or become incompetent prior to a divorce between the parties, G. Thomas Cooper, Jr. shall deliver the deed to the wife for recording. Should the wife die, or fail to procure the divorce within eighteen months through no fault of the husband, or become incompetent prior to a divorce between the parties, G. Thomas Cooper, Jr. shall deliver the deed to the husband. Allowance for taxes, insurance and utilities are included in the support payments and, therefore, the wife will be responsible for payment of them, including the year 1977.

7. The husband has the right to remove the furniture, silver and other personal property that was given to him from his relative's households whenever he desires to do so. He, however, must give to the wife at least two weeks notice of intention to do so. A list of these articles is attached hereto, but this list shall not be binding in case of omission where actual ownership is known. The husband herewith transfers the furniture in Pat's room to her, the furniture in Kay's room to her and the chest in Julia's room to her.

8. The husband will transfer title to the 1976 Chevrolet and the 1973 Datsun to the wife immediately. Allowance for taxes and insurance on one automobile is included in the support payments, and she, therefore, assumes the payments of taxes and insurance for 1977 and thereafter.

9. The husband agrees to assume the full responsibility for the notes of the wife totaling $3,500.00 at the South Carolina National Bank. In addition, he agrees to assume responsibility for the other open accounts as shown on the attached sheet. Any other open account incurred by the wife or the children, either before or after March 1, 1977, shall be the wife's sole responsibility, as the support payments cover the children's expenses.

10. The wife shall have the custody of the minor children and in the event that she dies or becomes incapacitated custody will automatically be transferred to the husband to age eighteen (18).

11. The husband shall have the reasonable allowances for visitation with the children on at least a weekly basis.

12. The husband agrees to provide the following insurance coverages on his life so as to set up a trust in his estate for support of the children in the event of his death. He is to name the trustee and will have the right to change that trustee from time to time. The trust will disburse the payments according to the support schedule herein set forth either before or after the children reach eighteen (18) years of age. In addition, it shall have the right to purchase hospital insurance to take care of the coverage that would have been provided through the husband's duPont plan. As long as Pat and Kay are both in college and up to the age of twenty-three (23) years at the time of the death of the husband, $100,000 will be placed in trust; when Pat graduates, drops out of college or reaches age twenty-three (23) and is still enrolled in college,...