Wife Held In Contempt for Failure to Reiburse Half of College Expenses

Smith v. Smith, 2010-Ohio-31

Second District Court of Appeals

Darke County

Rendered: January 8, 2010

Plaintiff, Deborah Smith, appeals from a final judgment of the Court of Common Pleas holding her in contempt.

The parties marriage was terminated November 18, 2002 after the court granted a Decree of Dissolution. The Decree adopted the terms of a Separation Agreement the parties signed and filed. The Separation Agreement provided, among other things, that the parties equally split the minor child’s college educational expenses.

The Defendant, in his motion for contempt, alleged that he paid $4,752.70 to Wright State University on behalf of the minor child and that Plaintiff had failed to reimburse him for her half of those expenses. At a hearing on the issue, Plaintiff admitted that she had failed to reimburse Defendant but defended her failure by stating, “that while it was her ‘intention’ to pay an equal share when she signed the Separation Agreement, that intention was conditioned on her ability to do so. The [Plaintiff] testified that she now lacks that ability, and therefore did not reimburse the [Defendant] the amount he asked her for.

The Magistrate filed a written decision recommending that the Plaintiff be found in contempt, applying breach of contract principles. The Magistrate held that the Separation Agreement is a written contract, and that its terms regarding the intentions of the parties are unambiguous. The Magistrate reasoned that because “the parties specifically stated their intent to share costs equally,” ... “it was inherent in the language that the Plaintiff has the same obligation” as the Defendant.

After stating that a Separation Agreement is a contract, the Court of Appeals agreed with the Magistrate.

From the Opinion:

We agree with the finding of the magistrate, implicitly adopted by the trial court, that the separation agreement is not ambiguous. Accordingly, the parties’ intent is to be found solely within the four corners of the agreement. Blasser v. Enderlin (1925), 113 Ohio St.121.

Confining ourselves to the language of the agreement we can only conclude, as did the magistrate and trial court, that the parties obligated themselves to equally share their child’s college expenses.

The parties anticipated that their child would attend college. The first sentence of Article XII makes clear the parties’ “intention” to equally share the child’s college expenses. Any possible doubt about whether the word “intention” is merely aspirational is dispelled by the word “shall” in each of the remaining four sentences, particularly the second and fifth sentences. “Shall” is a word of obligation, not aspiration. Defendant wouldn’t be obligated to pay 50% of the expenses to Deborah, or 50% of equivalent expenses should the child attend an out-of-state school, if Deborah is not obligated to pay the other 50%. The agreement does not obligate the parties’ child to pay these expenses. That Defendant is to pay his share to Plaintiff recognizes that Plaintiff was the child’s custodial parent, as of the time the marriage was dissolved, as the magistrate observed.