Weil v. Weil
| Decision Date | 17 May 1989 |
| Docket Number | No. 1369,1369 |
| Citation | 299 S.C. 84,382 S.E.2d 471 |
| Court | South Carolina Court of Appeals |
| Parties | Eugenia S. WEIL, Respondent, v. Julius Howard WEIL, Jr., Appellant. . Heard |
Marvin I. Oberman and A. Arthur Rosenblum, Charleston, for appellant.
William B. Settlemeyer, Charleston, for respondent.
We are called upon in this appeal to construe a judgment; very little has been written by South Carolina courts about the subject of construction of judgments. We affirm the appealed order.
The only issue of merit is whether the trial judge erred by construing a divorce decree to require the father to pay for private school tuition for the parties' minor child without limitation as to type, character or cost of the school. This issue involves several subissues which will be addressed in our discussion.
Eugenia S. Weil (the mother) brought this action against Julius Howard Weil, Jr., (the father) in which she alleged that upon the recommendation of qualified professionals, she had enrolled Howard, the older son of the parties, in Trident Academy, a private school specializing in the education of children with learning disabilities. Howard had been enrolled in other private schools in the Charleston area. The mother alleged that the father was obligated to pay for Trident by a prior divorce decree. The father counterclaimed. The mother's motion for summary judgment was heard by Judge Mendel Rivers, Jr., who denied it. Judge William J. McLeod heard the issues presented by the pleadings and issued the appealed order requiring the husband to pay the tuition for Howard at Trident and also attorney fees.
The parties were divorced by a decree of Judge Joseph W. Board, dated December 28, 1984. The fifteen-page decree incorporates and adopts the agreement of the parties. Judge Board's order recited the parties' agreement and decreed in accordance with it, in pertinent part, that: (1) "the parties will consult with each other on important matters of health, education and welfare, affecting the minor children ...;" and (2) the father is to "be responsible for the cost of private school tuition for the minor children so long as they are enrolled in private school." The mother was made sole custodian of the children. It appears that the parties' counsel took some pains in drafting the proposed decree, and that the parties were aware of its contents before it was submitted to Judge Board.
The record reflects that Howard attended Porter-Gaud, a private school, for the first through the sixth grades; his grades were so poor that the parties placed him in another private school, College Prep, after the sixth grade. Before placing Howard at College Prep, the parties considered various schools, including Trident Academy. Howard failed three out of five courses in the eighth grade at College Prep. The mother then placed Howard in Trident Academy for ninth grade; this occurred shortly after the parties were divorced. The mother consulted with the father prior to placing Howard in Trident Academy; the father insisted that he did not want Howard at Trident Academy.
Dr. Horowitz, a psychologist, testified that Trident Academy would provide the best local educational setting for Howard because of Howard's learning disability. Dr. Horowitz tested Howard and found that Howard tested average or above average in intellectual functioning, but he had a significant amount of distractability.
Admitted into evidence are several written evaluations of Howard prepared by various psychologists: (1) Dr. Quesenbery reports that although Howard (at age 11) tested average or above average in almost all intellectual functioning, he had significant problems with distractability; (2) Dr. Savage reports that Howard (at age 13) showed no evidence of a learning disability or a severe Attention Deficit Disorder, noting that Howard's low grades were probably due to anxiety, behavior problems and power struggles with his mother and brother (nevertheless Dr. Savage recommended enrolling Howard at Trident); (3) Dr. Brown reported that Howard was doing well at Trident but expressed concerns about "family dynamics"; (4) Dr. Horowitz reported that Howard (at age 15 years 9 months) clearly had an Attention Deficit Disorder and recommended a structured school with a learning disability program.
The father testified that he objected to Howard's placement at Trident Academy because (1) Trident would allow Howard to enter the ninth grade even though he failed the eighth grade and the father thought this was not appropriate; (2) the father feared Howard would be labeled "handicapped" Dr. Silver, a psychologist familiar with Howard and with Trident Academy, testified that Trident Academy is a good alternative for learning disabled students who have had failing experiences in public schools.
for attending Trident; and (3) Trident did not prepare students for college.
The mother testified that Howard is doing well at Trident, and "he is almost a different child" because he has increased self-esteem.
The father testified he did not anticipate the possibility that Howard would be placed in Trident when he agreed to pay tuition for private school in the parties' prior divorce agreement. The father's attorney in the prior divorce case testified, as a proffer, that the father considered only the private schools in which the children were enrolled at the time of the agreement when he agreed to pay tuition for private school. The difference in costs of tuition per year between Trident and College Prep is $6,000.
Martha Williams, guidance counselor for Middleton High School Gifted Program, testified that in Charleston County public schools a committee determines where a learning disabled student should be placed, and they are required to consider the "least restrictive" alternative first; that is, the student will be placed in the regular school program as much as possible. Under this standard, Howard would never have been considered a candidate for a "self-contained" program like the program at Trident, which is considered very restrictive, because his disability was minor.
The father's income increased from $108,000 in 1983 to $163,185 in 1986. He net worth is approximately $1.5 million.
The father contends that Judge McLeod was bound by Judge Rivers' statement in his order denying summary judgment to the effect that the parties' agreement and the corresponding provisions of the divorce decree were ambiguous. After finding that "there are genuine issues of fact that would make a trial helpful to a fair and just resolution of the dispute between the parties," Judge Rivers went on to state:
[I]t occurs to the court that it is unreasonable to hold as a matter of law that the parties ... intended [Father to pay tuition at] any private school without regard to the nature or the type of school, and the expense of the school. [Emphasis in original.]
The doctrine of the law of the case is not applicable to a statement by the court which does not constitute a binding adjudication. 21 C.J.S. Courts Section 195 at 334 (1940). We construe the quoted part of Judge Rivers' order as mere dicta, an expression or statement by the court on a matter not necessarily involved in the case nor necessary to a decision thereof. Id. Section 190. The only real issue before Judge Rivers in the mother's motion for summary judgment was the question of whether there were material facts which precluded the granting of summary judgment.
The doctrine of the law of the case applies to an order or ruling which finally determines a substantial right.... [O]rdinarily an interlocutory order which merely decides some point or matter essential to the progress of the cause, collateral to the issues in the case, is not binding as...
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