Schwartz v. Collins, 2017-UP-346

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM.
Docket Number2017-UP-346
PartiesMireya G. Schwartz and Evan Collins, Appellants, v. David W. Collins, Respondent. Appellate Case No. 2015-000555
Decision Date16 August 2017

Mireya G. Schwartz and Evan Collins, Appellants,
v.

David W. Collins, Respondent.

Appellate Case No. 2015-000555

No. 2017-UP-346

Court of Appeals of South Carolina

August 16, 2017


THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted November 1, 2016

Appeal From Dorchester County William J. Wylie, Jr., Family Court Judge

William J. Clifford, of William J. Clifford, LLC, of North Charleston, for Appellants.

Christopher David Lizzi, of Lizzi Law Firm, PC, of North Charleston, for Respondent.

PER CURIAM.

Mireya Schwartz and Evan Collins (collectively, Appellants) appeal the family court's order denying their request for previously incurred college expenses, student loans, and costs; holding David Collins (Father) responsible for his share of college expenses beginning with the Spring 2015 semester; and holding the parties responsible for their own attorney's fees. Appellants argue the family court erred in (1) finding their burden of proof required a showing that Evan could not attend college without the assistance of his parents when parental contribution for tuition and books had been reduced to a final order; (2) holding Father liable for prospective college expenses pursuant to the parties' property settlement and separation agreement (the Agreement) but not for the college expenses already incurred because testimony did not adequately establish the amount of Father's required contribution; and (3) holding the parties responsible for their own attorney's fees. We affirm in part, vacate in part, and reverse in part.

Initially, we find the family court improperly considered factors under Risinger.[1]The parties previously entered the Agreement concerning payment of their children's college expenses. Therefore, the Agreement controls this dispute, and the family court erred in considering the Risinger factors. See Nicholson v. Nicholson, 378 S.C. 523, 539, 663 S.E.2d 74, 83 (Ct. App. 2008) ("As in Lacke, this controversy is governed by the Agreement and, thus, the Risinger analysis is inapplicable."); Lacke v. Lacke, 362 S.C. 302, 313, 608 S.E.2d 147, 153 (Ct. App. 2005) ("Furthermore, this case is governed by the parties' agreement."); id. at 314, 608 S.E.2d at 153 ("Risinger . . . ha[s] no application to situations where a parent voluntarily binds himself in an agreement to assume a child's college expenses. When such an agreement exists, the child is under no obligation to minimize expenses, incur student loans, or apply her own income to pay for college unless the agreement so provides."). Accordingly, we vacate the family court's findings with respect to the Risinger factors.

Next, we find the family court erred by denying Appellants' request for contribution toward all of Evan's college expenses pursuant to the Agreement. The Agreement was unambiguous and required Father "to be responsible for [one-half] of the tuition and books for all three children. [Father's] responsibility will not exceed the cost of a student attending the University of South Carolina [(USC)]." See Nicholson, 378 S.C. at 532, 663 S.E.2d at 79 ("In South Carolina, the construction of a separation agreement is a matter of contract law." (quoting Davis v. Davis, 372 S.C. 64, 75, 641 S.E.2d 446, 451 (Ct. App...

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