Nicholson v. Nicholson, 4404.

• Decision Date: 06 June 2008
• Docket Number: No. 4404.,4404.
• Court: South Carolina Court of Appeals
• Parties: Patsy Gail NICHOLSON and Kyle Allen Nicholson, Respondents, v. F. Allan NICHOLSON, Appellant.

663 S.E.2d 74

378 S.C. 523

Patsy Gail NICHOLSON and Kyle Allen Nicholson, Respondents, v. F. Allan NICHOLSON, Appellant.

No. 4404.

Court of Appeals of South Carolina.

Submitted June 1, 2008.

Decided June 6, 2008.

Margaret A. Chamberlain, of Greenville, for Appellant.

Brian K. James, of Easley, for the Respondents.

ANDERSON, J.

Patsy Gail Nicholson (Mother) and her adult son Kyle Allan Nicholson (Kyle) initiated this action against F. Allan Nicholson (Father) seeking Father's payment of Kyle's college expenses pursuant to a separation agreement. Father appeals the family court's order in favor of Mother and Kyle. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

Mother and Father married in March 1978, separated in October 1992, and later divorced. They had two children, Kyle being the youngest. A separation agreement entitled "Complete Property, Support, Custody, and Separation Agreement" (the Agreement) was approved by the family court and made part of the Order Approving Separation. The Agreement provided:

3-OTHER BENEFITS FOR CHILDREN

The Husband presently owns ____ shares of stock in Duke Power Company, as a result of his employment. The Husband agrees to use the proceeds from the sale of the stocks for the minor children's educational needs, first and foremost, or to other necessities for the children as a need may arise. Notwithstanding his continued employment at Duke Power Company or his termination from employment, the Husband agrees to provide for the minor children in an amount equivalent to the value of 1,200 shares of the Duke Power Stock at its present value of 36,000.

Kyle graduated from high school in May 2006 with a grade point average of 3.4 and ranked thirty-eighth in a class of one hundred fifteen. He received awards in art during his junior and senior years. His career ambitions focused on the design field with special interests in automotive design or architecture. In September 2006, he enrolled at Tri-County Technical College majoring in University Transfer hoping to later attend Clemson University or another school offering design programs.

While still in high school, Kyle was diagnosed with depression and placed on medication. During his first semester at the technical college, he explained to the court his depression was worsened by the stress of not knowing where he would live or if he would have the money to continue his education. His anxiety grew to the point where "everyday was kind of a struggle" and, following a suicide attempt and hospitalization, he withdrew from school. Kyle did not take his prescribed medication properly, used marijuana prior to his hospitalization, and tried cocaine one time. At the time of the hearing, Kyle remained in counseling and found it beneficial. He no longer uses illegal drugs and his prescribed medicine has been adjusted with positive results. Kyle returned to Tri-County Technical College the spring semester following his withdrawal.

In his financial declaration, Kyle indicated he intended to participate in a work-study program expecting to earn $309 per month. His tuition was covered by financial aid, federal Pell grants, and a Life Scholarship requiring he maintain a 3.0 grade point average and complete a certain number of credits.

Kyle used a car, but it was not in his name. Because Mother had totaled her vehicle and was moving from the area, she would take the car Kyle had been driving. Among the expenses Kyle submitted were auto related costs of $250 per month and automobile payments of $300 per month. On a monthly basis, Kyle estimated he needed $200 for food and household supplies, $200 for utilities, $30 for his medical co-payment, and $100 for computer and internet supplies. Overall, his monthly expenses were $1620. Additionally, he listed a $4000 debt owed to a family friend for money borrowed by Mother on Kyle's behalf to pay the action's attorney fees.

The family court judge found the "Other Benefits for Children" clause ambiguous. The testimony of Mother and Father was received on the issue of intent. Father testified he earns $72,000 per year as an employee of Duke Energy, where he has worked for twenty five years. The Duke Energy stock referenced in the Agreement began as a stock benefit account but later changed to a 401(k). At the time of the hearing, the stock had split and was worth approximately $60,000. He explained the disposition of the stock at the time Mother and Father entered the Agreement:

Q: [W]as that part of the equitable division of marital property with [Mother], your ex-wife?

A: Yeah, that was set aside yes, to help pay for things, educational things, or things that they needed, as they grew up from the time we separated.

Q: Okay. So in lieu of her taking a percentage of stock, y'all were essentially holding it in trust for your kids; is that right?

A: We set aside that amount to help with the kids.

Father stated he did not understand "educational needs" as used in the Agreement to be college. His understanding of "other necessities for children" included "[c]lothes, things they need in school, food when they don't have money for food, power...."

Father presented the family court with a list of miscellaneous expenditures made on behalf of the children in years past. The list, admittedly prepared for the purpose of the hearing, included such items as trips to the beach and amusement parks, musical instruments, a Play Station, and a go-cart. Father argued these were "other necessities" and asserted his $36,000 obligation should be set off accordingly. He admitted he never communicated to Mother or Kyle that the expenses were to be counted towards the shares of stock he owned.

Mother was currently seeking disability due to temporal arthritis and collagen vascular disease. She had been residing with her aging parents in North Carolina, returned to South Carolina to help Kyle after his emotional problems intensified, and planned to return to her parents' home. She testified the Agreement provided for the children's college education.

The family court judge ruled: the Agreement was ambiguous but (1) the intent was to include college expenses as indicated by the testimony of Mother and Father; (2) "other necessities" was intended to include living expenses incident to college; (3) Father agreed to pay up to $36,000, the stock's value at the time of the Agreement; (4) the older child did not seek benefits under the Agreement; and (5) the Agreement contained no requirement the children mitigate expenses or work.

The order mandated:

Defendant/father shall pay directly to Kyle Nicholson the sum of $800.00 per month for the months of January through May 2007 and for the months of September through December 2007, yet equating to nine (9) months a year. The Defendant/father shall do the same for next year. Kyle Nicholson shall provide proof to his father that he is continuously enrolled full time to obtain the money.

[A]fter Kyle Nicholson's two (2) years at Tri-County Technical College, there shall be a balance left from the agreement in the amount of $21,600.00 for his last two (2) years of college, or eighteen (18) months for a sum of $1,200 per month.

Kyle Nicholson shall be required to exhaust all grants and scholarships, but shall not be required to incur loans or minimize expenses.

Kyle Nicholson shall provide a print-out to his father of his tuition, room and board, books, and his grants and scholarships.

$400.00 transportation expenses shall be included in the tuition, room and board, and books. The room and board expenses shall not exceed the cost to live on campus with room and board and full meal plan.

[T]he Defendant/father's obligation shall forever end if Kyle Nicholson is not continuously enrolled full time, except if he has a medical withdrawal unrelated to substance abuse. Kyle Nicholson shall not use illegal drugs and the Defendant/father shall have full discovery on that issue.

[T]he Defendant/father shall pay attorney's fees directly to Plaintiff's attorney in the amount of $2000....

Kyle Nicholson is not entitled to assistance under Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979).

STANDARD OF REVIEW

On appeal from the family court, this court has jurisdiction to find facts in accordance with its own view of the evidence. Ray v. Ray, 374 S.C. 79, 83, 647 S.E.2d 237, 239 (2007); South Carolina Dep't of Soc. Srvcs., County of Siskiyou v. Martin, 371 S.C. 21, 24, 637 S.E.2d 310, 311 (2006); Patel v. Patel, 359 S.C. 515, 522-23, 599 S.E.2d 114, 118 (2004); Maxwell v. Maxwell, 375 S.C. 182, 184, 650 S.E.2d 680, 682 (Ct.App.2007); Heins v. Heins, 344 S.C. 146, 151, 543 S.E.2d 224, 226 (Ct.App.2001); Kisling v. Allison, 343 S.C. 674, 677, 541 S.E.2d 273, 275 (Ct. App.2001); Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 244-45 (Ct.App. 1999). "This tribunal, however, is not required to disregard the Family Court's findings." Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct.App.2002); Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005); Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (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." Lacke v. Lacke, 362 S.C. 302, 307, 608 S.E.2d 147, 150 (Ct.App.2005) (citing Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003)); see also Kisling at 678, 541 S.E.2d at 275 ("[B]ecause the appellate court lacks the opportunity for direct observation of the witnesses, it should give great deference to the Family Court's findings where matters of credibility are involved."). This broad scope of review does not relieve the appellant of the burden of convincing this court the family court erred. Skinner v. King, 272 S.C. 520, 522-23, 252 S.E.2d 891, 892 (1979); Davis v. Davis, 372 S.C. 64, 74, 641 S.E.2d 446, 451 (Ct.App.2006); Nasser Moghaddassi v....