Petition of White

Decision Date13 June 1989
Docket NumberNo. 1393,1393
Citation385 S.E.2d 211,299 S.C. 406
CourtSouth Carolina Court of Appeals
PartiesEx parte Petition of Judith Gray Snell WHITE. In re Judith Gray SNELL, Appellant, v. Wilson Maurice SNELL, Respondent. . Heard

J.D. Todd, Jr. of Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

John Kittredge of Wilkins, Nelson, Kittredge & Simmons, Greenville, for respondent.

GARDNER, Judge:

Judith Gray Snell White (the mother) brought this action against her former husband, Wilson Maurice Snell (the father), in which she sought, inter alia, an order (1) requiring the father to pay college expenses for their 19-year-old daughter, Virginia Snell, in accordance with an agreement incorporated in the divorce decree of the parties, (2) requiring the father to pay child support for the children of the parties as provided by the agreement and (3) awarding her attorney fees. The appealed order basically denied the relief sought by the mother and granted the father's counterclaim for a reduction in his support obligation. We affirm in part, reverse in part and remand.

ISSUES

We find the only issues of merit to be whether the trial court erred (1) in construing the agreement of the parties, as incorporated in the divorce decree, relating to the children's college expenses and post-majority child support payments, (2) in modifying the terms of the agreement and decree, and (3) in failing to award the wife attorney fees.

FACTS

As stated in the first paragraph of this decision, the mother's complaint sought an order requiring the husband to pay college expenses for Virginia at Clemson in accordance with the parties' agreement which was approved and incorporated in the decree of the family court of July 8, 1976. The father's answer alleged, inter alia, that "the clear intent of the Order is that college education is at a four (4) year college or at an in-State public university."

The divorce decree of July 8, 1976, approved and incorporated as part of the decree an agreement of April 28, 1975, which provided:

The husband agrees that he will pay $175.00 a month for the support of Gordon Snell and that such shall continue until Gordon reaches his twenty-first (21st) birthday or until such time as he shall have had an opportunity to complete four years of college. The Husband agrees to pay for the support and maintenance of Virginia Snell the sum of $175.00 a month, such to continue until Virginia reaches her twenty-first (21st) birthday or until such time as she shall have had an opportunity to complete four years of college. The Husband binds himself, his heirs, administrators, executors, and assigns, to make these child support payments.

The parties own certain stocks and have an investment in Sardis Mortgage Company of Charlotte, and it is agreed that the stocks owned by the parties and the investment in Sardis Mortgage Company shall be transferred to Robert L. Lindsey, an attorney-at-law in Charlotte, North Carolina, as Trustee, for the college education of the children. The Trustee shall have full power and authority to use any of the income from such stocks or to invade the principal for the purposes of providing a college education for the two children. The Husband agrees that he will pay for the college education of the two children in whatever amount, if any, over and above that provided in the trust if necessary. It is agreed that by college education is meant a four-year college course at any State university in the State of South Carolina or any other equivalent school with equivalent costs. The obligation to provide for a college education includes tuition, room, board and college fees. The college to be attended shall be agreed upon by the Husband and the child involved, after consultation with and consideration of the views of the Wife. [Emphasis ours.]

The mother was 45 years old at the time of the hearing and the father 52 years old. Both parties had lived in South Carolina for a long number of years prior to the divorce, but subsequent to the divorce both parties remarried and moved to North Carolina. The parties' two children are Virginia, age 19, and Gordon, age 20.

Gordon is mentally handicapped with an I.Q. of 79. He graduated from high school taking learning disability classes, and at the time of the hearing was employed at an hourly rate of $4.50. He earned $10,958.46 in 1987 and had saved $4,000.00 with the hope of living independently. He is currently living with his mother and does not attend college.

Virginia wanted to attend the University of North Carolina but received only a qualified admission. The qualification and resulting decision to attend Clemson rather than the University of North Carolina can best be explained by quoting a letter from the mother to the father dated July 31, 1987, as follows:

Dear Wilson:

Virginia Page will be attending Clemson this Fall. Attached are the bill, meal plan information, expenses we have incurred and a UNC comparison.

It is my understanding from the business office of UNC as Fri. 7-31-87 they expect the tuition to be 260 per semester despite the newspapers.

Please note expense for student Fee is one lump sum at UNC and itemized at Clemson. I was also told that books would be $200 to $250 not 162.50 by UNC business office. In any event we will not have that exact figure until she is actually there. Please make that check to her--she will pay by her personal check and send you a copy of the bill and a check for the difference. That check can not be made to the University in any case.

We will be leaving here August 14th AM and she will be home from Maine Aug. 12th. So we will need

(1) check for books

(2) check for meals--see attached correspondence

(3) check for portion of enclosed University bill.

These 3 checks should be in her possession as the Business office will not accept partial payments, and the deadline for prepayment is Aug 4th which we will miss due to the late billing. Hopefully the billing will be earlier for Spring semester--but at least we will have the figures.

UNC accepted her as a special student for 3 semester however she would have had to live in Granville Towers (4,000) as that was all that was available plus gone to 3 sessions of summer school. As she would have only been allowed to take 8 hours for 3 semesters before being allowed to transfer in. Therefore it would have been far more expensive to go to UNC.

I have enclosed a copy of Clemson's bill that shows $80.00 payment for admissions deposit, $75 for housing deposit. I have also included expenses of applications--I would appreciate a check for all of the above.

Because Tuition at Clemson is less than Carolina--but we are hit with the University fee as out of state--I expect the full amount of Carolina tuition to be credited in her check to off set the difference--per your letter you are basing this check on UNC tuition.

Please take care of this right away as she will not be allowed to register without it.

Judy

CC: J.D. Todd

Robert L. Lindsay

The above letter is of importance because of reference to it in the appealed order, which is later discussed.

Virginia attended Clemson her freshman year in 1987 and 1988; she did well with her schoolwork there. 1 It appears from the record that the mother and Virginia consulted with her father before having Virginia matriculate at Clemson and that he agreed to her going to Clemson.

Virginia's expenses for room, board, tuition and other school related fees in the fall semester were $3,560.00. The trustee paid $2,030.75 of this amount which included $250.00 for book allowance. Her expenses for the spring semester were $3,725.00. The trustee paid only $1,580.00 of this amount. There is no explanation in the record for the difference in the amount paid in the fall and spring semesters other than the fact that the trustee did not pay for books in the spring. The record reflects that the trustee based his checks upon costs at UNC which included a dorm fee of $610.00 per semester rather than the $4,000.00 in Granville Towers referred to by the mother in her letter to the father.

The mother paid all expenses of Virginia's freshman year not paid by the trustee; she assumed and does not complain of the obligation of paying such expenses as transportation, clothing, spending money and sorority expenses. Virginia resided in North Carolina when she entered college.

The appealed order made no finding as to the intent of the parties except that the trial judge found the testimony of the husband to be persuasive and interpreted the mother's letter of July 31, 1987, to indicate that the mother believed that the intent of the parties as to the agreement's provisions for college expenses was the same as the father's. Based upon this, the trial judge provided by the appealed order that the trustee properly paid only those costs which would have been charged by the University of North Carolina for an in-state student. The appealed order also ordered that all costs not paid by the trustee for any reason be paid equally by both the mother and the father. The appealed order then provided that the holdings of the trial judge were for Virginia's best interest; no foundation for this finding of best interest was made.

The appealed order reduced the father's child support obligation to $25.00 per month for the son and $100.00 per month for the daughter; the order based the reduction on (1) the son's earnings and (2) the daughter's earnings and (3) the fact that the father is required to pay substantial college costs.

The appealed order required that both parties pay their own attorney fees.

DISCUSSION
I.

As a general rule, judgments are to be construed like other written instruments. The determinative factor is the intent of the parties or the court, as gathered, not from an isolated part of the contract or judgment but from all its parts. Hence, in construing a contract or a judgment, it should be examined...

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