Preview:

COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
DONALD A. DOUGLAS
OPINION BY
v.      Record No.  0313-98-4                                        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                     DECEMBER  1,  1998
BONNIE JEAN HAMMETT, F/K/A
BONNIE JEAN DOUGLAS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Dan Burke  (Tyler, Bartl, Burke & Albert, on
brief), for appellant.
No brief or argument for appellee.
Donald A. Douglas  (husband) appeals the trial court's order
requiring him to reimburse Bonnie Jean Hammett  (wife) for college
expenses she paid for their son.    He contends the trial court
erred in awarding reimbursement for living expenses while the
child was attending school and the purchase price of a computer.
Finding no error, we affirm.
I.
"On appeal, we construe the evidence in the light most
favorable to wife, the prevailing party below, granting to her
evidence all reasonable inferences fairly deducible therefrom."
Donnell v. Donnell,  20 Va. App.  37,  39,  455 S.E.2d  256,  257
(1995).    Husband and wife were married in  1972 and one child,
Donald Douglas, Jr.  (Donald), was born of the marriage.    The
parties entered into a separation agreement dated January  27,
1979.    Paragraph five of the agreement provided that the husband




would "pay the expenses of a college education for the child."1
The agreement was incorporated into the final decree of divorce
entered May  7,  1980.
At the time of the hearing in this matter, Donald had
recently graduated from East Carolina University  (University).
He attended the University from  1992 through  1997 on a full
athletic scholarship that covered tuition, books, housing and the
university meal plan.    According to N.C.A.A. rules, Donald was
not allowed to work during the academic year.    As a result of
this restriction, his mother sent him a monthly allowance for
living expenses not covered by his scholarship.2    These living
expenses included transportation, clothes, laundry, meals outside
1That paragraph provides:
SUPPORT AND MAINTENANCE OF CHILD
During the life of the Husband, the
Husband shall pay to the Wife the sum of  $270
per month for the support and maintenance of
Donald Adam Douglas, payable on the  15th day
of each month commencing February  15,  1979,
the same to continue for said child until he
attains eighteen  (18) years of age, dies,
marries or becomes earlier emancipated,
whichever is the first to occur.
The Husband agrees to pay all medical,
dental and other related expenses incurred on
behalf of the child.    The Husband agrees that
he will pay the expenses of a college
education for the child.
2Donald received  $150 per month during his first year,  $200
per month during his second year, and  $350 per month for the last
three years when he lived off-campus.    While the University
continued to pay him a monthly stipend for rent during his last
three years, he was responsible for any additional amounts not
covered by the stipend, such as utilities.
-  2  -




the college meal plan, long distance phone bills, basketball
league fees not paid by the University, and other incidentals.3
Donald testified that his father had given him money only "once
or twice" during the five years of college.
The educational program at East Carolina is generally four
years.    However, Donald spent five years attaining his
undergraduate degree because he "red-shirted"4  one year due to
medical reasons.    Additionally, Donald testified he could have
graduated in four years "if I would have taken a heavier load,
which would have made it that much more difficult to keep decent
grades due to our travel schedule."    To make up academic credits,
he attended summer school during his first year of college
because the summer school tuition was covered by his athletic
scholarship.    He earned both a bachelor's of science degree in
business administration and a master's degree in business
administration from the University.
In June  1997, wife filed a petition in the circuit court to
enforce paragraph five of the parties' property settlement
agreement.    She argued that the agreement required husband to pay
all necessary college expenses for Donald.    Wife sought
reimbursement for actual expenditures, including the purchase
3Mother offered into evidence copies of checks, bank
statements, and receipts for expenses that were alleged to be
cause-related.
4Donald testified that "red-shirt" is a term meaning that
the individual plays on the practice squad of the basketball team
for a year to retain a year of eligibility.
-  3  -




price of a computer used by Donald during college.    Wife's
evidence established that she spent approximately  $36,600 in
uncovered college expenses.
Following an ore tenus hearing, the trial court awarded
college-related living expenses in the amount of  $150 per month
for nine months for four years.    The court stated:
In many respects, Mr. Douglas is very
fortunate in that his son has the talent and
wherewithal to obtain a very, very good
scholarship to cover many of the expenses
associated with a college education.
But the agreement is the agreement, and
only requires Mr. Douglas to pay expenses for
a college education, which means any expenses
that are reasonably related to a college
education.
*                                                                  *   *   *   *   *   *
[T]here are cause-related expenses that were
not covered by the scholarship.    And I
believe the proof is sufficient to show some
of this,  .  .  .
.  .  . I think that  [husband] is liable
for four years of expenses, first of all.
And given the nature of the requirements of
his son for food that was not provided by the
cafeteria given his schedule and his needs,
and for clothing which I believe under the
circumstances of this case are related to
college because he couldn't work, and one
does have to be clothed for class.  .  .
And he had no other means of obtaining
income because he couldn't work, I think,
under the circumstances.    In this case,
clothing is related; not necessarily in all
cases, but here because of the special
requirements.
Given the fact that he wasn't buying
clothes every day necessarily, or eating out
every day, it is my estimate based on the
evidence that the college-related living
expenses would not exceed  $150 per month for
each of the four years.
There is no evidence that there was any
-  4  -




increased need to the  $200 or  $300 that  [was]
given to him.
.  .  . I think the evidence adequately
supports  $150 per month.
The trial court also found the computer purchased for Donald was
a "cause-related" expense of college and covered by paragraph
five of the parties' agreement.    Accordingly, husband was ordered
to reimburse wife a total of  $10,123, which included  $5,400 in
college living expenses  ($150 per month for nine months for four
years) and  $4,723, the cost of a computer.
II.
On appeal, husband contends the trial court erred in
awarding wife reimbursement for monies she spent on Donald's
college expenses.5    Husband first argues the trial court
erroneously ordered him to pay  $150 per month for college living
expenses when Donald was receiving a full athletic scholarship.
We disagree.
Separation agreements and property settlement agreements are
contracts.    See Tiffany v. Tiffany,  1 Va. App.  11,  15,  332 S.E.2d
796,  799  (1985); and Jones v. Jones,  19 Va. App.  265,  268-69,  450
S.E.2d  762,  764  (1994).    "[T]herefore, we must apply the same
rules of interpretation applicable to contracts generally."
Tiffany,  1 Va. App. at  15,  332 S.E.2d at  799.    Where a settlement
agreement is unambiguous, its meaning and effect are questions of
5Husband raises five assignments of error, all of which deal
with the issue of whether the trial court erred in ordering
husband to pay certain college expenses uncovered by Donald's
athletic scholarship.
-  5  -




law to be determined by the court.    See id.    Moreover, "[w]here
the agreement is plain and unambiguous in its terms, the rights
of the parties are to be determined from the terms of the
agreement and the court may not impose an obligation not found in
the agreement itself."    Jones,  19 Va. App. at  268-69,  450 S.E.2d
at  764; see also Waynesboro Village v. BMC Properties,  255 Va.
75,  79-80,  496 S.E.2d  64,  67  (1998)  ("[W]here an agreement is
complete on its face, is plain and unambiguous in its terms, the
court is not at liberty to search for its meaning beyond the
instrument itself.  .  .                                                    . This is so because the writing is the
repository of the final agreement of the parties.").    Although
parties may advance different interpretations of the provisions
in an agreement, this "does not necessarily imply the existence
of ambiguity where there otherwise is none."    Smith v. Smith,  3
Va. App.  510,  513-14,  351 S.E.2d  593,  595  (1986).    "`An ambiguity
exists when language admits of being understood in more than one
way or refers to two or more things at the same time.'"    Id. at
513,  351 S.E.2d at  595  (quoting Renner Plumbing v. Renner,  225
Va.  508,  515,  303 S.E.2d  894,  898  (1983)).
In the instant case, we do not view the term "expenses for
college education" as ambiguous.    Husband argues the term should
be strictly limited to tuition, books, room and board, and any
other fees necessary to participate in the educational program.
Under the plain meaning rule, we believe the term "college
expenses" includes tuition, room, board, books, fees, clothing,
-  6  -




allowances and incidentals.    See, e.g., In Re Marriage of
Pearson,  603 N.E.2d  720,  730  (Ill. App. Ct.  1992)  (holding that
"the court is authorized to order payment of a child's college
expenses, including reasonable living expenses, from the property
and income of either or both parents"  (emphasis added)); In re
Marriage of Falat,  559 N.E.2d  33,  37  (Ill. App. Ct.  1990)  (noting
that educational expenses includes "reasonable living expenses"
(emphasis added)); In Re Marriage of Pauley,  432 N.E.2d  661,  665
(Ill. App. Ct.  1982)  ("[t]herefore, educational expenses are to
include more than just tuition and book fees.    The mother is
entitled to reasonable living expenses  .  .  ."  (emphasis added));
Harding v. Harding,  374 N.E.2d  1304,  1306  (Ill. App. Ct.  1978)
(holding that expenditure of  $10,000 for "educational, living,
and incidental expenses during three semesters of college  .  .  .
[was not] excessive or otherwise unreasonable"  (emphasis added));
Dupuis v. Click,  604 A.2d  576,  577  (N.H.  1992)  (noting that
college expenses means "costs of room, board, tuition, books,
activity fees, registration fees, costs of laundry  .  .  . and
$20.00 per week payable directly to such child while said child
is actually in attendance at school and not employed"); Brake v.
Brake,  413 A.2d  422,  423-24  (Pa. Super. Ct.  1979)  (reinstating
award for college expenses including "additional money for
incidental expenses such as books, paper, and laundry"  (emphasis
added)); see also In Re Marriage of Dieter,  648 N.E.2d  304,  310
(Ill. App. Ct.  1995)  (holding that hourly flight costs required
-  7  -




to obtain bachelor's degree were college expenses); Kappus v.
Kappus,  616 N.Y.S.2d  790,  791  (N.Y.  1994)  (holding that
educational expenses included costs of placement tests and summer
program abroad).
The parties did not specify in their property settlement
agreement precisely what expenses would be cause-related to
Donald's college education or what would happen if Donald
received a scholarship.    However, it is reasonable to include
some amount of ordinary living expenses in determining the normal
expenses for a college education.    A student could not attend
college in a vacuum.    This conclusion is fully consistent with
the rule in Virginia that the words the parties use are normally
given their "usual, ordinary, and popular meaning."    D.C.
McClain, Inc. v. Arlington County,  249 Va.  131,  135,  452 S.E.2d
659,  662  (1995).    Husband put no limitation on his obligation to
pay "the expenses of a college education."    As the trial judge
found, this would include reasonable cause-related, or
college-related, expenses.    To hold otherwise would render the
parties' own language meaningless.
In the instant case, wife presented evidence in support of
her claim for reimbursement of cause-related college expenses.
Wife testified that she sent Donald a monthly allowance of
$150-350 per month for living expenses.    Donald described his
daily academic and athletic schedule, which often required him to
eat his meals during time periods when the cafeteria was closed.
-  8  -




Additionally, he testified that he was not allowed to work
during the academic year and had no other source of income for
living expenses.    Finally, wife presented numerous checks,
receipts, and statements to support her claim that the
college-related expenses were reasonable and necessary.
The trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it.    See Fauquier County Dept. of Social
Services v. Robinson,  20 Va. App.  142,  154,  455 S.E.2d  734,  740
(1995)  (citing Hughes v. Gentry,  18 Va. App.  318,  321-22,  443
S.E.2d  448,  451  (1994)).    The trial court heard the evidence and
determined the reasonableness of the expenditures.    It awarded
$150 per month for nine months for four years of college, an
amount significantly less than that requested.    Accordingly, we
hold the trial court did not err in awarding wife a  $5,400
reimbursement for living expenses and incidentals she incurred on
Donald's behalf during his college career.
Next, husband contends the trial court erred in awarding the
cost of a computer bought for Donald because it was not
"necessary" to Donald's education and was purchased just prior to
the time when he should have graduated.    We disagree.
The trial court again found that the evidence established
the computer to be a covered college expense.    Indeed, Donald
testified that he used the computer for academic purposes and
-  9  -




particularly to maintain and keep current with his classes when
he was required to be away from school for a basketball game.
The evidence established the cost of the computer to be a
reasonable college expense, and the trial court did not err in
awarding reimbursement for Donald's computer.6
Husband is bound by the property settlement agreement and
the contractual obligations he undertook therein.    Finding no
error, we affirm.
Affirmed.
6Husband also contends for the first time on appeal that the
circuit court was without jurisdiction to consider wife's
petition because the claim was tantamount to a request for
additional spousal or child support, which should have been
sought in the juvenile and domestic relations district court.
This claim is without merit and because it is not a
jurisdictional issue, it is barred by Rule  5A:18.
-  10  -

Download 0313984.pdf

Virginia Law