May 11, 2015
Domestic relations. Lowndes Superior Court. Before Judge Horkan.
Dodd & Burnham, Wilburn B. Burnham II; Durant Law, M. Katherine Durant, for appellant.
David A. Webster, for appellee.
Thompson, Chief Justice.
Gary Don Mims (husband) and Lynn Bassford Mims (wife) married in 1986 and were divorced in 2008. At the time of their divorce, two of the couple's four children were minors. The final divorce decree incorporated a settlement agreement entered into by the parties in which husband agreed to pay the costs of a college education for all of the children. In a paragraph entitled " College Tuition" the agreement provided:
For so long as the child (child refers to all children of the parties) maintains passing grades and attends school full time, the Husband agrees to pay the cost of a college education in an amount not to exceed the costs for tuition, books, student activities fees, housing, food, etc., for a full-time,
in-state student to obtain a four-year undergraduate degree at Valdosta State University or another accredited university upon which the parties agree.
In 2010, the couple's youngest daughter graduated from high school and enrolled in Valdosta State University (" VSU" ) beginning Fall Semester 2010. In February 2012, wife filed a contempt action against husband alleging that he had failed to pay college expenses for their daughter as required under the terms of the settlement agreement. Finding that daughter had been a full-time college student from Fall 2010 through and including Fall 2013 and had [297 Ga. 71] maintained passing grades the Superior Court of Lowndes County entered an order directing husband to pay daughter's college expenses for all nine semesters she had attended, minus amounts credited for daughter's receipt of the Hope Scholarship and Pell Grants. The trial court declined to find husband in contempt, however, determining that he had not received notification of the expenses incurred by daughter prior to wife's filing her complaint. This Court granted husband's application for discretionary appeal to determine whether the trial court erred when it ordered husband to pay daughter's expenses for each of the nine semesters she had attended college. For the reasons that follow, we affirm the decision below.
Husband argues that the trial court erred when it ordered him to pay daughter's college expenses incurred after Fall Semester 2010. He asserts that because daughter withdrew from a class during Spring Semester 2011 and only completed eleven of the fifteen credit hours for which she was registered, she had not attended school full time during that semester as contemplated by the settlement agreement and his obligation to provide for her educational expenses thereafter ceased. Husband contends that regardless of the school's definition of full-time student, the plain language of the settlement agreement required daughter to successfully complete and obtain academic credit for a full-time course load each semester or his obligation to pay her college expenses under the agreement would terminate. Alternatively, husband argues that the trial court erred in finding him obligated to pay daughter's college expenses beyond Spring Semester 2012 when she only enrolled in and completed nine credit hours.
Without question, husband's obligation to pay college expenses for his adult daughter arose solely from the parties' settlement agreement. See Marshall v. Marshall, 262 Ga. 443 (421 S.E.2d 71) (1992) [297 Ga. 72] (" Neither a judge nor jury may require a parent to provide child support beyond the age of majority." ). However, once the parties'
settlement agreement was approved by the trial court and incorporated into the final divorce decree, husband's obligation to pay these expenses became an enforceable order of the court. See Bullard, supra at 579. Pursuant to the terms of the agreement, husband was obligated to pay (with some limitations) the cost of a college education for each of his children, including daughter, " [f]or so long as the child ... maintains passing grades and attends school full time." Thus, in order for the court to require husband to pay daughter's college expenses, these two conditions must have been met.
As it was undisputed that daughter maintained passing grades, the primary issue to be decided by the trial court with respect to husband's obligation to pay college expenses was whether daughter " attend[ed] school full time." Husband asserts that the parties' use of the phrase " for so long as" combined with the requirement to " attend[ ] school full time" meant daughter must be continuously enrolled as a full-time student and must complete and receive credit hours for a full course load each semester in order to qualify for his assistance. We find that the plain language of the parties' agreement does not demand such an interpretation, nor is there any evidence that the parties intended such requirements. This Court has previously construed the phrase " full time student" to " mean continuous attendance during the normal school year." See Bullard, supra, 279 Ga. at 580 (2); Hayward v. Lawrence, 252 Ga. 337, 338 (312 S.E.2d 609) (1984). Although VSU defines a full-time student as one who is registered for twelve or more semester hours, this definition was not incorporated into the parties' agreement. See Mattocks, supra, 266 Ga. at 346. Nor did the parties' agreement address the treatment of summer school attendance. See Draughn v. Draughn, 288 Ga. 734, 736 (2) (707 S.E.2d 52) (2011); Bullard, supra at 581. Finding no evidence that when the parties made their agreement they intended to adopt a different [297 Ga. 73] meaning or apply a different standard to the term " full time student," other than that previously adopted by this Court in Bullard, the trial court determined daughter had attended school full time as contemplated by the agreement.
A trial court is not permitted to modify the terms of a divorce decree in a contempt proceeding, but is authorized to interpret or clarify the decree. See Hamilton v. Hamilton, 292 Ga. 81, 82 (1) (734 S.E.2d 355) (2012). The test for distinguishing whether a trial court's ruling clarifies, rather than impermissibly modifies, a divorce decree, is " whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification." (Citation and punctuation omitted.) Cason v. Cason, 281 Ga. 296, 297 (1) (637 S.E.2d 716) (2006).
Here, the trial court determined that the parties' use of the phrase " attends school full time" only imposed a requirement on daughter that she not interrupt her college career by taking time off during the normal college year. Compare Still v. Still, 199 Ga.App. 723 (405 S.E.2d 762) (1991) (interpreting specific language in an agreement providing father's tuition obligation " shall continue as long as the child remains continuously enrolled"
to mean that the father was not obligated to resume payments after the child was no longer continuously enrolled). As there was no evidence that the parties intended to assess daughter's attendance at school in terms of credit hours taken and completed each semester as urged by husband, the trial court properly refused to so modify the agreement. See Mattocks, supra. Because daughter was in continual attendance at college during the normal school year from Fall Semester 2010 through and including Fall Semester 2013 and maintained passing grades, the trial court found she had met both conditions and that husband was required to pay her actual expenses as provided under the agreement. Given that the parties' agreement neither limited daughter to attending college two semesters per year, nor required that she continuously attend classes year-round, we conclude that the trial court's order requiring husband to reimburse wife for all daughter's college expenses incurred as of the date of the hearing was based on a reasonable clarification of the final divorce decree.
[297 Ga. 74] Husband alternatively contends that the trial court erred in requiring him to pay daughter's tuition for Spring Semester 2012 and each semester thereafter due to wife's admission at the contempt hearing that daughter was enrolled as a part-time student at VSU in Spring 2012 and that wife was not seeking reimbursement for these expenses. Despite wife's testimony at the hearing, her application for contempt sought an order requiring husband to pay all of the college expenses required under the parties' divorce decree. Inasmuch as the trial court found the parties did not intend to adopt VSU's definition of full-time student, wife's admission with respect to daughter's status as defined by VSU during Spring Semester 2012 had no effect on husband's obligation to pay daughter's college expenses. Moreover, although wife testified at the hearing that she was not seeking reimbursement for daughter's expenses for Spring Semester 2012, because she asked for them in her petition and there was evidence of daughter's Spring Semester 2012 expenses in the record, the trial court was authorized to award these expenses, as well as those incurred during subsequent semesters.
All the Justices concur.