Saliba v. Saliba, No. 1998-CA-01311-SCT.

Citation753 So.2d 1095
Decision Date24 February 2000
Docket NumberNo. 1998-CA-01311-SCT.
PartiesWilliam David SALIBA v. Katie Rose McClendon SALIBA.
CourtUnited States State Supreme Court of Mississippi

Ray T. Price, Hattiesburg, Attorney for Appellant.

Erik M. Lowrey, Hattiesburg, Attorney for Appellee.

BEFORE PRATHER, C.J., SMITH AND COBB, JJ.

COBB, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Katie Rose McClendon Saliba (Kit) and William David Saliba (David) entered a property settlement agreement in conjunction with their divorce granted on April 2, 1996. The Agreement specifically reserved the determination of the amount each parent would pay toward their children's college education expenses until the children were ready to attend college.

¶ 2. When daughter Katie Rose was a senior year in high school, Kit filed a motion in the Forrest County Chancery Court seeking determination as to who would be responsible for paying for Katie Rose's college education. Kit requested that the court enter an order requiring each parent to pay one-half of Katie Rose's college expenses at whichever college Katie Rose might choose.

¶ 3. In his Response to Motion and Counter-Petition for Clarification, David contended that Katie had more than sufficient funds of her own which were intended to be used to pay for college, and therefore neither party should be required by the court to pay her college expenses. Alternatively, David argued that Kit has a greater ability to pay and therefore his part should be limited to one-half of tuition, books, and room and board at a state-supported (Mississippi) institution until Katie Rose reaches the age of twenty-one or becomes otherwise emancipated.

¶ 4. In Kit's Response to Affirmative Matter and Answer to Counter-Petition for Clarification, she acknowledged Katie Rose's substantial assets but denied they were intended for educational purposes. Kit contended that she and David should split college expenses and that Katie should not be limited to an in-state1 school.

¶ 5. At the June 18, 1998, hearing on this matter the court waived production of Kit's financial declaration and ordered that her tax returns be produced under seal.2 The court denied production of the children's tax records. In determining that each parent should pay one-half of Katie Rose's college expenses at the college of her choice, the court found as follows:

An in-depth discussion of Katie Rose's financial needs of college in relation to the ability of the parties to pay for such needs only raises emotional considerations of who will assume the responsibility of higher education.... The Court will not attempt to divide the parties with such a discussion; rather, in keeping with the willingness of the Plaintiff to defray one-half of the college expense, will assign the responsibility equally between them without regard to the small financial sacrifice involved so that each parent will pay one-half of the college expenses of tuition, books, subsistence, sorority, and car insurance not covered by scholarship[3] for Katie Rose Saliba to attend the school of her choice. The advantage of the partial scholarship outweighs the consideration of requiring her attendance at a state-supported institution, the necessity of books, subsistence, sorority and car insurance being present either place.

¶ 6. On July 16, 1998, David filed a timely Notice of Appeal to this Court. After due consideration, we affirm the judgment of the trial court.

STATEMENT OF FACTS

¶ 7. David and Kit Saliba were divorced by judgment of the chancery court of Forrest County on April 2, 1996. As part of the divorce, granted on grounds of irreconcilable differences, the parties entered into a property settlement agreement which was incorporated into the judgment of divorce. David agreed to pay $1,250 per month in child support for their two children, Katie Rose and Mary Paige, who were ages fifteen and twelve at the time of the divorce. David and Kit reserved the issue of college expenses for the children, including in the property settlement agreement the following provision:

The issue of college education is intentionally left out of this Agreement with the understanding of both parties that this matter shall be reserved and determined by the Court at the appropriate time when the minor children of the parties attain the age to attend college. A stipulation regarding the value of the minor children's present Uniform Gift to Minor Act accounts has been executed by the parties' attorneys and shall be deemed the account balance as of the date of the statements which are attached to the stipulation.

¶ 8. In February 1998, when Katie Rose, the elder daughter was a senior in high school, Kit sought a determination by the Forrest County Chancery Court as to who would be responsible for payment of Katie Rose's college expenses. In her motion filed with the court, Kit asked that the court require each parent to pay one-half of all college expenses, including but not limited to room, board, tuition, travel expenses to and from school, books, sorority expenses and any other expenses required for Katie Rose to attain a degree at any university which she chooses to attend. David disagreed with this proposal and suggested to the court that Katie Rose had ample funds in her own right, given to her by her McClendon grandparents, and that all college expenses should be paid out of Katie Rose's assets. In the alternative, David suggested that his liability to pay should be limited to no more than one-half the cost of attending a state-supported institution in Mississippi.

¶ 9. No contested evidentiary hearing was actually held in this matter, but the parties and their respective counsel appeared before the chancellor and certain stipulations were made on the record. In response to a statement from David regarding his reason for requesting detailed information regarding Katie Rose's investment accounts, the chancellor stated "it comes down to a legal question of whether you're obligated to do it, notwithstanding that [Katie Rose's separate estate] ... and that's what the court will decide it on, then. Okay?" After consideration of briefs submitted by the parties, the chancellor ordered that each parent pay one-half of Katie Rose's college expenses not covered by her scholarships, at the school of her choice.

ISSUES

¶ 10. The three issues presented by David for resolution by this Court are as follows:

I. THE CHANCELLOR ERRED AS A MATTER OF LAW IN FAILING TO CONSIDER THE CHILD'S OWN ASSETS AND THE FACT THAT SHE COULD PAY FOR HER OWN COLLEGE EDUCATION FROM SUCH ASSETS

II. EVEN IF THE CHANCELLOR WAS CORRECT IN DETERMINING THAT THE MINOR'S FUNDS WERE NOT ACCESSIBLE, HIS DECISION IN ALLOCATING THE BURDEN OF COLLEGE EXPENSES EQUALLY BETWEEN THE TWO PARTIES IN THIS CASE BOTH LEGAL ERROR AND MANIFEST ERROR BASED ON THE FACTS

III. THE CHANCERY COURT ERRED IN ORDERING PAYMENT OF EXPENSES FOR OUT-OF STATE TUITION, SORORITY AND CAR INSURANCE

Standard of Review

¶ 11. The findings of fact of the chancery court, particularly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong. Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989). This Court always reviews a chancellor's findings of fact, but we do not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Bowers Window & Door Co., v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989). Findings of the chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied. Sarver v. Sarver, 687 So.2d 749, 753 (Miss.1997). For questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

ANALYSIS

I. THE CHANCELLOR ERRED AS A MATTER OF LAW IN FAILING TO CONSIDER THE CHILD'S OWN ASSETS AND THE FACT THAT SHE COULD PAY FOR HER OWN COLLEGE EDUCATION FROM SUCH ASSETS

¶ 12. Because Katie Rose's separate assets were invested in a Uniform Gift to Minors Act account, there was discussion of not only whether she should pay for her own college expenses but also whether she could pay for them. The chancellor noted in his judgment that a letter from A.G. Edwards & Sons had been furnished the court and that it stated that Katie Rose "is not eligible to withdraw assets from her account without the signature of the custodian (her mother, Kit) until she reaches the age of 21." However, the chancellor went on to say "[t]hat prospect discounted, the issue before the court is whether the parents of Katie Rose should be required to fund her college expenses."

¶ 13. Clearly, under the Mississippi Uniform Transfers to Minors Act (Miss.Code Ann. §§ 91-20-1 et seq. (1994)), as well as its predecessor, the Mississippi Uniform Gifts to Minors Act (Miss.Code Ann. §§ 91-19-1 et seq. (1994)). Katie Rose may reach the assets of her account through her mother, Kit, who is the custodian of the accounts.4 As custodian, Kit has access to the funds for Katie Rose's use, and is able to withdraw them at will on behalf of Katie Rose for educational expenses or for any other purpose which Kit, as custodian, deems wise and necessary. Additionally, should Katie Rose decide that paying for all or part of her own college education would be a worthy use of her assets, she would be free to do so, with the signature of Kit, as custodian. However, the chancellor did not have to reach these points, because he correctly determined that Katie Rose should not be forced to pay her college expenses out of her own estate.

¶ 14. There is scant Mississippi case law addressing the issue of who is responsible for payment of a child's college expenses and none which specifically addresses the allocation of such expenses where both parents, as well as the...

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