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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 94-CA-00253 COA JUDY WHITE BROCK v. CHARLES R. BROCK APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: 02/11/94 HON. PATRICIA D. WISE HINDS COUNTY CHANCERY COURT CHRISTOPHER A. TABB PATRICK D. MCMURTRAY DAVID M. LOPER CIVIL - DOMESTIC RELATIONS JUDGMENT FOR DEFENDANT REVERSED AND REMANDED - 2/24/98

4/7/98

EN BANC. MCMILLIN, P.J., FOR THE COURT: This appeal raises the issue of the proper interpretation of a provision contained in a written agreement between Judy Brock and Charles R. Brock signed a few days prior to their 1978 divorce in the Chancery Court of Hinds County obtained by Mrs. Brock on the grounds of habitual cruel and inhuman treatment. The decree of divorce incorporated the agreement, styled "Articles of Separation, " into the decree and "ordered [the parties] to perform each and every obligation set forth therein . . . ." The agreement contained a provision that Mr. Brock would "provide the minor child, Amanda Brock, with a college education." A dispute as to the actual meaning of this phrase arose when Amanda Brock reached the age of twenty-one, and Mr. Brock refused to contribute further to her

college expenses. The dispute led to the litigation that is now before us for decision. Mr. Brock contended (with success) before the chancellor that the phrase "minor child" was purposely inserted to limit his responsibilities to the period of Amanda Brock's minority, and that any obligation in regard to college expenses ceased when the child reached the age of twenty-one years, whether or not she had completed her undergraduate degree. Mrs. Brock, on the other hand, contends on appeal to this Court that the chancellor was manifestly in error in so ruling, and that Mr. Brock's responsibilities to his daughter survive into her majority under contract law. The authority of the chancery court to compel a divorced parent to contribute to the support of a child, including college educational expenses, normally ends when that child reaches the age of twenty-one years. Stokes v. Maris, 596 So. 2d 879, 882 (Miss. 1992). However, the supreme court has recognized that a parent may, by contract, assume financial responsibility for the education of his or her child that exceeds the otherwise-existing statutory authority of the chancellor. In Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993), the supreme court said that "[t]his Court holds that where [the father] contracted to pay post-emancipation support in the form of college and other expenses, he is bound by his contract." Id. at 1230; Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989). These additional obligations, once contracted for, may be enforced by the chancery court in the same manner as judicially-originated obligations. Crowe v. Crowe, 622 So. 2d at 1230; Nichols, 547 So. 2d at 770. Our jurisprudence has for some time recognized that married parties may contract on matters touching child custody and support in contemplation of separation or divorce and that the contract may be incorporated into the divorce decree, even though the ground for the divorce itself may be one that cannot be confessed under section 93-5-7 of the Mississippi Code of 1972. In re Estate of Kennington, 204 So. 2d 444, 448-49 (Miss. 1967). It is with just such a contract that we deal in this case. The chancellor found "from the testimony of Mr. Brock [that] it is clear that his intent was not to provide college expenses beyond the child being a minor. It is undisputed that she was 21 in November of 1993 . . . ." The chancellor noted that, in ruling in favor of Mr. Brock, she was bound by the provisions of Stokes v. Maris that prohibited her from extending Mr. Brock's obligation past the daughter's twenty-first birthday in the absence of a contractually-created duty. This Court has concluded that the chancellor was manifestly in error when she ruled that Mr. Brock's obligations for his daughter's education ceased when the child reached the age of twenty-one years. The chancellor employed an incorrect legal standard when she decided the issue based on her conclusions about Mr. Brock's subjective intent without making the necessary preliminary finding that an ambiguity existed in the contract. The measure of a party's duty under a written contract is not the party's subjective understanding of the agreement or his unexpressed intentions, rather the proper measure of the obligation is an objective one determined from the language of the contract itself. Ellis v. Powe, 645 So. 2d 947, 952 (Miss. 1994). It is only when ambiguity arises that extraneous evidence concerning the understanding of the parties may be considered. Id. The chancellor did not preface her findings about Mr. Brock's intentions with a determination that the contract itself was ambiguous on the point. We have reviewed the agreement and find, as a matter of law, that no such ambiguity existed.

When this agreement was entered into in 1978, Amanda Brock was five years of age. The phrase "minor child," when coupled with the name of the child in the manner done in this part of the agreement, is, by any reasonable construction, a term of description only. Had the agreement provided that Mr. Brock would provide "the five-year-old child of the parties, Amanda Brock, with health insurance," it is inconceivable that Mr. Brock would have been permitted to let insurance lapse when Amanda reached the age of six, no matter how convincing his protestation that this was his intent when he signed the agreement. Only an unnaturally forced reading of this fictional agreement would permit the discovery of an ambiguity, and that is not the business of the courts in interpreting matters of contract. See Citizens' Bank v. Frazier, 157 Miss. 298, 302, 127 So. 716, 717 (1930) ("It is the duty of courts to give to a contract that construction or interpretation, if possible, which will square its terms with fairness and reasonableness . . . ."). Neither do we think the actual agreement is susceptible of the reading urged by Mr. Brock without resort to the most strained reasoning. The Separation Agreement refers to the daughter on six occasions as the "child," on three occasions as the "minor child," and twice she is referred to simply by name. These varying methods of referring to the child appear to have occurred in a purely random manner. We can find no principled basis to attach particular significance to the choice of one of these designations over another in any individual instance. Having validly contracted to provide his daughter with a college education, Mr. Brock must now live up to the terms of that agreement without consideration of the fact that his daughter reached the age of twenty-one years before completing her undergraduate studies. This case is, therefore, remanded for further proceedings to determine, with more particularity, the extent of that obligation. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. THOMAS, P.J., DIAZ, HERRING, HINKEBEIN, AND SOUTHWICK, JJ., CONCUR. PAYNE, J., CONCURS WITH SEPARATE WRITTEN OPINION. BRIDGES, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

PAYNE, J., SPECIALLY CONCURRING: Since I believe that the supreme court in Stokes v. Maris, 596 So. 2d 879, 881 (Miss. 1992), incorrectly relied on Nichols v. Tedder, 547 So. 2d 766, 768 (Miss. 1989) for authority in regard to college expenses when no college expenses were involved in Nichols v. Tedder, I cannot agree with either opinion in the case sub judice that the law in Mississippi anticipates that a father's duty for his offspring's college education automatically stops at the offspring's twenty-first birthday. I do agree with the majority here that the court can always enforce a contract for total college expenses and that the contract in this case was unambiguous and enforceable. BRIDGES, C.J., DISSENTING:

I respectfully dissent from the majority's conclusion that Mr. Brock validly contracted to provide his daughter with a college education and must continue to do so irrespective that she has now reached post-minority status. I believe that the chancellor was correct in extinguishing the father's obligation to pay his daughter's college expenses, but not for the reasons stated. Unlike the majority, I believe that this provision does not meet the requirements of a contract and thus, because of the variable and vague meaning of an essential term, "college education", it is too indefinite to be enforced. This Court cannot require specific performance when riddled with indefinite and unresolved terms. Although courts do not usually cite dissents to other cases, I agree with Justice Sullivan's dissent in Rogers v. Rogers, 662 So. 2d 1111, 1117 (Miss. 1995): [I]f this is in fact a suit to enforce a contract, the more proper vehicle is not a citation for contempt, but a suit for specific performance. In that action the chancellor is limited to specifically enforcing the contract, if one exists, between the parties. In such an action there would be no temptation, as occurred here, to rewrite the contract for the parties. Before a court can order specific performance, the court must be able to look at the instrument and determine what performance is required. Duke v. Whatley, 580 So. 2d 1267, 1274 (Miss. 1991) (citations omitted). Without knowledge of the parties intent of an essential term, courts are unable to determine what performance should be required. Id. The elementary general rule, as frequently enunciated in reference to the enforcement of specific performance of contracts, is that the contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties had met and mutually agreed as to all details upon the offer made upon one hand and accepted upon the other. 17 Am. Jur. 2d Contracts

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