Robert Bruce Jackson v. Jean Jackson Harley ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
ROBERT BRUCE JACKSON
v. Record No. 2138-95-3 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
JEAN JACKSON HARLEY MAY 14, 1996
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
Melissa Warner Scoggins (David G. Weaver;
Gentry, Locke, Rakes & Moore, on briefs), for
appellant.
Charlie R. Jessee (Jessee & Read, P.C., on
brief), for appellee.
Robert Bruce Jackson appeals the decision of the trial court
finding that he has agreed to send all of his three children to
college and requiring him to pay those expenses. We affirm the
trial court's ruling as to the first child, but reverse as to the
two younger children.
When Dr. Robert Jackson and Jean Harley Jackson divorced in
1987, their children were ten, seven, and four years old. The
Stipulation Agreement incorporated into the divorce decree
contained a provision concerning college expenses:
16. The Parties hereto agree that should each of
the Parties, decide to send any or all of their
children, aforesaid, to college, said educational
expense(s) will be provided for by the Parties on a
pro-rated basis of his or her income to the other
Party.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
As an example, the following is provided:
Husband's annual earnings — $200,000.00
Wife's annual earnings — 20,000.00
Wife would be obligated to pay ten (10%) of the
child's college expenses.
In Fall 1994 their eldest daughter decided to forego her
senior year of high school and enrolled at the University of
Virginia. Dr. Jackson did not want her to go to school this
early, but instead thought that she should take a year off. He
eventually paid ninety percent of her college expenses, but
challenged the provision, arguing that each parent was required
to agree to send the child to college and he did not agree. The
court ruled that the agreement contemplated a college education
for all the children and that neither parent had a veto power.
The judge further found that the parties in fact had agreed to
send their children to college.
A separation agreement is enforced as any other contract
between the parties. Parra v. Parra, 1 Va. App. 118, 128, 336
S.E.2d 157, 162 (1985). "Property settlement and support
agreements are subject to the same rules of construction and
interpretation applicable to contracts generally." Fry v.
Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987); see
Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799
(1985). The intent of the parties as expressed in the contract
controls the interpretation. Bender-Miller Co. v. Thomwood
Farms, Inc., 211 Va. 585, 588, 179 S.E.2d 636, 639 (1971). "When
the terms of a disputed provision are clear and definite, it is
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axiomatic that they are to be applied according to their ordinary
meaning." Smith v. Smith, 3 Va. App. 510, 513, 351 S.E.2d 593,
595 (1986).
The agreement in question provided that should each of the
parties decide to send any or all of the children to college, the
expenses would be split. This language clearly contemplates that
the parties must both agree that each child should attend
college.
The trial court found that the parties had already agreed to
send all of their children to college. The record does not
support this conclusion in its entirety. Robert Jackson did
demonstrate, by his actions and words, that he agreed to send his
eldest daughter to college. He objected only to her leaving a
year early, not to her attending college at all. He ultimately
did pay for the first year, rather than refusing to contribute to
her decision. The trial court was correct in holding Dr. Jackson
responsible for his pro rata share of his first daughter's
college expenses.
The evidence before the court demonstrates that the parties
have not agreed to send their two younger children to college.
If they are so inclined, the parties may agree, at any time, as
to whether either or both of the children shall be sent to
college, but as neither child is yet of college age, these
discussions need not be made now.
We affirm the trial court's decision concerning the college
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expenses of the eldest daughter. The portion of the ruling
concerning the other children is reversed and remanded for the
trial court to enter an order not inconsistent with this holding.
Affirmed in part,
reversed in part,
and remanded.
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