Norris v. Norris , 281 Ga. 566 ( 2007 )

HUNSTEIN, Presiding Justice.

Linda Norris (Wife) filed a contempt action against her former husband, Thomas Norris, alleging that he failed to pay the college expenses of their son in violation of the final judgment and decree of divorce. The final judgment obligated Husband to pay

the expenses of a college education of the minor child, including, but not limited thereto, tuition, room and board, books and other miscellaneous expenditures. The Husband’s responsibility for the expenses of the tuition of the college education shall not exceed the amount of tuition of an in-State student at the University of Georgia attending the Bachelor’s program, either as a Bachelor of Art or Bachelor of Science or other similar type degree.

The trial court determined that Husband was obligated under the final judgment to pay college expenses for eleven semesters and based on evidence presented regarding the child’s expenses and monies previously provided by Husband, the court ordered Husband to pay an additional $36,210.29. We granted Wife’s application to appeal in Case Number S06A1524 to determine whether the trial court erred by imposing an eleven semester limit on Husband’s obligation to pay college expenses and reverse.

Case Number S06A1524

1. Husband’s obligation to pay his son’s college expenses arose solely from the settlement agreement between the parties that was incorporated into the final decree. See OCGA § 19-7-2; Coleman v. Coleman, 240 Ga. 417 (5) (240 SE2d 870) (1977). Based on the absence of language in the agreement specifying the time in which the child must complete his undergraduate education, the court determined an eleven semester limitation was “reasonable” and terminated Husband’s obligation for any period of time thereafter.¹ “However, where the terms of a contract are clear and unambiguous, the court must look to those terms alone to determine the intent of the parties. [Cit.]” Hartley-Selvey v. Hartley, 261 Ga. 700, 701 (410 SE2d 118) (1991). In this case, the agreement obligated Husband to pay “for the expenses of a college education of” the parties’ child. The only limitation placed on Husband’s obligation was the agreement that the rate of tuition for which Husband would be responsible was the equivalent of an in-State student attending the University of Georgia in the Bachelor’s program. While the parties could have placed a time limitation on Husband’s contractual obligation to pay college expenses, they did not do so, and it was error for the trial court to impose such a limitation. See id. (court erred by reading into agreement requirement that parent pay only reasonable college expenses).²

Case Number S06X1525

2. After Wife’s application for appeal was granted by this Court, Husband filed his cross-appeal, contending that the trial court erred by failing to give him credit for monies the child withdrew from a Uniform Transfer to Minors account established by Husband’s parents and which the child used to pay certain college expenses. Husband raised this same issue in an application for discretionary review filed pursuant to OCGA § 5-6-35 (a) (2), which was dismissed by this Court because it was untimely filed. Accordingly, Husband’s claim is barred under the doctrine of res judicata and his cross-appeal hereby is dismissed. See Mitchell v. Oliver, 254 Ga. 112 (1) (327 SE2d 216) (1985).

Judgment reversed in Case Number S06A1524.

All the Justices concur, except Melton, J., who concurs specially, and Sears, C. J., and Thompson, J., who dissent. Appeal dismissed in Case Number S06X1525. All the Justices concur.

1 During the 2005 contempt hearing, it was established that the child had attended college three semesters a year for each year since fall 2000 and was expected to graduate in spring 2006.

2 We also note that the limitation language on its face applies only to “the expenses of the tuition of the college education” (emphasis supplied). Though the dissent disagrees with our conclusion that the limitation clause was intended to limit only the rate of tuition rather than the time period over which such tuition must be paid, if the intent of the parties had been to place a temporal limitation on the Husband’s obligation to pay, then the limitation language would likely have been drafted to apply to all the specified expenses - not only tuition hut also “room and hoard, books and other miscellaneous expenditures” - enumerated in the agreement.