An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-946
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
JUDSON H. BLOUNT, III,
Plaintiff
vs. Pitt County
No. 91-CVD-756
ROBIN W. LEMAIRE,
Defendant
Appeal by Plaintiff from judgment and order entered 7 March
2014 by Judge David A. Brantley in Pitt County District Court.
Heard in the Court of Appeals 9 January 2014.
Edwin M. Hardy for Plaintiff.
Susan K. Ellis, PLLC, by Susan K. Ellis, for Defendant.
DILLON, Judge.
Judson H. Blount, III (Plaintiff), appeals from the trial
court’s judgment and order awarding a monetary judgment and
attorneys’ fees in favor of Robin W. Lemaire (Defendant), in
connection with Plaintiff’s purported breach of an agreement to
pay the college expenses of the parties’ two children. For the
following reasons, we affirm in part and vacate in part.
I. Factual & Procedural Background
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Plaintiff and Defendant, formerly husband and wife, have
two children from their marriage, Avery and Kallie. On 11 May
1990, while their children were still minors, Plaintiff and
Defendant executed a Separation and Property Settlement
Agreement (the Separation Agreement), which includes the
following provision (the Education Provision) concerning payment
of their children’s educational expenses:
EDUCATIONAL EXPENSES. . . . If the
children of the parties shall be enrolled in
a college or university beyond his or her
eighteenth (18th) birthday, which college or
university shall be selected by the child
and the parties to this Agreement, the costs
of room, board, and tuition of that college
or university for each child so enrolled
shall be paid by [Plaintiff]. [Plaintiff]
agrees to provide reasonable spending money
for the child while attending school.
The parties agreed to incorporate the terms of the Separation
Agreement into a judgment for absolute divorce, which was
entered in Pitt County District Court on 23 March 1992.
In May 2000, a consent order was entered through which
Plaintiff agreed to pay Defendant $2,000.00 per month in child
support. This consent order referenced the Education Provision,
recognizing that Defendant had, inter alia, waived any right to
spousal support in exchange for Plaintiff’s promise to pay the
children’s college expenses.
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On 19 August 2004, Plaintiff filed a motion seeking credit
towards his child support obligation for additional living
expenses that he had been paying on Avery’s behalf. The court
denied Plaintiff’s motion by order entered 15 April 2005,
reasoning that the May 2000 consent order “contains clear and
unequivocal language and terms indicating that each of the
parties intended it to be non-modifiable as an integrated
agreement and Order based on reciprocal consideration and
without regard to any change in circumstances.” The court also
ordered Plaintiff to pay Defendant’s attorneys’ fees on grounds
that Plaintiff’s motion had presented “a complete absence of a
justiciable issue of law or fact . . . .”
In the fall of 2005, Avery entered Peace College in Raleigh
as a full-time student. Plaintiff states that Avery performed
“adequately” until the fall 2007 semester, when Avery failed all
five of her courses, and after which Plaintiff informed Avery
that he would not pay her tuition, board, or other college
expenses until she passed a semester “under her own steam.”
Avery acknowledged her understanding and obtained a loan in
order to pay her college expenses for the spring 2008 semester.
Although her grades improved, Avery left Peace College after the
spring 2008 semester. Plaintiff resumed his payment of Avery’s
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college expenses when Avery subsequently enrolled at Pitt
Community College, where she completed a two-year degree in May
2010.
Kallie enrolled as a full-time student at the College of
Charleston in the fall of 2008. Plaintiff informed Kallie in
2010 that he would not pay her college expenses beyond her
fourth year of enrollment. Following her fourth year of
studies, however, Kallie still needed one additional semester to
complete her degree. Accordingly, Kallie obtained a loan to
finance her final semester and graduated in December 2012.
On 23 August 2012, Defendant filed a motion in the cause
and for attorneys’ fees, seeking (1) reimbursement for student
loan payments and other college expenses that she had paid on
behalf of Avery and Kallie; and (2) court costs, including
attorneys’ fees that she had incurred in bringing this action.
Following a hearing on these matters, the trial court entered a
judgment and order on 7 March 2013. Therein, the trial court
awarded Defendant a judgment in the principal amount of $26,236;
ordered Plaintiff to pay off an outstanding student loan on
Kallie’s behalf; and ordered Plaintiff to pay Defendant’s court
costs, including attorneys’ fees. From this judgment and order,
Plaintiff appeals.
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II. Analysis
A. Standard of Review
“It is well settled in this jurisdiction that when the
trial court sits without a jury, the standard of review on
appeal is whether there was competent evidence to support the
trial court’s findings of fact and whether its conclusions of
law were proper in light of such facts.” Shear v. Stevens Bldg.
Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). “Where
there is competent evidence to support the trial court’s
findings of fact, those findings are binding on appeal.”
Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732,
734 (2009).
B. Plaintiff’s Contractual Obligations
Plaintiff contends that the trial court erred in awarding
damages to Defendant as reimbursement for Defendant’s payment of
some of the children’s college expenses. We disagree.
“[O]ur case law . . . clearly establishes that a parent can
assume contractual obligations to his child greater than the law
otherwise imposes. Thus, a parent may expressly agree to
support his child after emancipation and beyond majority, and
such agreements are binding and enforceable.” Williams v.
Williams, 97 N.C. App. 118, 122, 387 S.E.2d 217, 219 (1990)
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(citations omitted). “Where issues surrounding the
interpretation of the terms of a contractual agreement are
concerned, the generally accepted rule is that the intention of
the parties controls, and the intention can usually be
determined by considering the subject matter of the contract,
language employed, the objective sought and the situation of the
parties at the time when the agreement was reached.” Robertson
v. Hartman, 90 N.C. App. 250, 252, 368 S.E.2d 199, 200 (1988)
(citing Pike v. Wachovia Bank and Trust Co., 274 N.C. 1, 161
S.E.2d 453 (1968)). “When the language of a written contract is
plain and unambiguous, the contract must be interpreted as
written and the parties are bound by its terms[.]” Five Oaks
Homeowners Ass'n, Inc. v. Efirds Pest Control Co., 75 N.C. App.
635, 637, 331 S.E.2d 296, 298 (1985).
Here, the parties agreed to incorporate the terms of the
Separation Agreement into their divorce judgment. As part of
the Separation Agreement, Plaintiff agreed to pay their
children’s college expenses in exchange for Defendant’s
agreement to, inter alia, waive any claim against Plaintiff for
spousal support. Plaintiff acknowledges the Education Provision
and his obligations thereunder, but contends that because it is
silent with respect to when such obligations terminate, the
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trial court should have read a term of reasonable duration into
the provision. Although we agree in principle with Plaintiff’s
position to a certain extent – for instance, we do not believe
that the Education Provision’s failure to specify the duration
of Plaintiff’s obligation to pay his daughter’s college expenses
would obligate Plaintiff to pay such expenses indefinitely – we
do not believe that application of this principle helps
Plaintiff in the present case.
With respect to Kallie, Plaintiff asserts that his
obligation to pay her college expenses should have ended at the
close of Kallie’s fourth year at the College of Charleston,
since four years represented “sufficient time” for Kallie to
complete her four-year degree. In short, Plaintiff contends
that it was unreasonable to require him to pay Kallie’s college
expenses for the one additional semester that Kallie needed to
complete her degree. We are not persuaded. While it may be
true – and perhaps anticipated in many instances – that a
college student will complete a four-year degree in the
“traditional” four-year period, it is also reasonably
foreseeable that a student might require additional time to
complete his or her degree. Plaintiff, who was an attorney at
the time he entered into the Separation Agreement with
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Defendant, could have accounted for this possibility and
negotiated for inclusion of a provision in the Separation
Agreement limiting the duration of his college-expense-related
obligations. Restricting our analysis and holding to the
circumstances presented, where there exists a valid contractual
agreement unambiguously obligating one party’s payment of
college-related expenses incurred by a third-party beneficiary
without specifying when the obligation terminates, and where the
beneficiary enrolls one additional semester in order to complete
a four-year degree, we conclude that the trial court did not err
in construing the parties’ Separation Agreement so as to
obligate Plaintiff with respect to Kallie’s college expenses in
question.
Plaintiff further contends that the trial court erred in
obligating him to pay Avery’s college expenses for her spring
2008 semester at Peace College in light of the fact that Avery
had failed all five of her courses the preceding semester.
Plaintiff insists that his obligation to pay Avery’s college
expenses should have terminated when Avery failed to perform
“adequately” and, further, that because the Separation Agreement
fails to specify what level of performance was “adequate,” “the
Court should step in to rule what is reasonable.” We disagree
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with these contentions for reasons similar to those articulated
above relating to Kallie’s college expenses. While we do not
believe that the Education Provision can be properly construed
as requiring Plaintiff to pay for semester after semester of
poor academic performance indefinitely, it is certainly
foreseeable that a college student such as Avery might perform
poorly in a given semester, ultimately requiring that she extend
her coursework beyond the traditional four-year period. Thus,
given the circumstances presented, we conclude that the trial
court did not err in obligating Plaintiff with respect to
Avery’s college expenses at issue. See Barker v. Barker, __
N.C. App. __, 745 S.E.2d 910 (2013) (holding that the father,
who had agreed to pay his daughter’s education so long as she
“diligently applied” herself to her studies, was obligated to
continue paying the daughter’s educational expenses,
notwithstanding the daughter’s poor academic performance and
placement on academic probation).
C. Attorneys’ Fees
Plaintiff further contends that the trial court erred in
ordering him to pay Defendant’s attorneys’ fees. We agree.
We review the trial court’s award of attorneys’ fees for
abuse of discretion. Runnels v. Robinson, 212 N.C. App. 198,
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203, 711 S.E.2d 486, 490-91 (2011). “Abuse of discretion
results where the court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result
of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285,
372 S.E.2d 523, 527 (1988). “The general rule in North Carolina
is that attorney’s fees are not allowed as a part of the costs
in civil actions or special proceedings, unless there is express
statutory authority for fixing and awarding the attorney’s
fees.” Alston v. Fed. Exp. Corp., 200 N.C. App. 420, 424, 684
S.E.2d 705, 707 (2009) (citing Bowman v. Comfort Chair Co., 271
N.C. 702, 704, 157 S.E.2d 378, 379 (1967)).
Here, the trial court concludes in its order that
“Defendant is the prevailing party in this action and is
entitled to a judgment for her attorney fees and expenses. The
attorney fees and expenses incurred by Defendant in the amount
of $5020.00 are reasonable, entitling Defendant to a judgment
for that amount.” The order, however, does not articulate any
basis, statutory or otherwise, for the attorneys’ fees award.
Defendant has not advanced any statutory authority, before
the trial court or now on appeal, in support of her request for
attorneys’ fees. Rather, Defendant’s sole contention with
respect to the merits of the attorneys’ fees award is that
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“[t]his current proceeding is no different substantively from
the previous proceeding between the parties heard by Judge
Brantley in April 2005 in which attorney fees were awarded to
Defendant.” Defendant insists that because the same judge has
previously awarded her attorneys’ fees in a separate proceeding
brought under the Separation Agreement and because “[b]oth
proceedings concerned Plaintiff’s failure to pay certain amounts
he contractually agreed to pay and/or was required by court
order to pay[,]” she must likewise be entitled to attorneys’
fees in the present action. We disagree that these two
proceedings are substantively the same; whereas the April 2005
order addressed Plaintiff’s “clear and unequivocal” child
support obligation under the Separation Agreement, the present
matter involves Plaintiff’s obligation to pay the children’s
college expenses under a provision of the Separation Agreement
that fails to define the scope of that obligation. Moreover, we
fail to see how the April 2005 attorneys’ fees award, which
evidently was never subjected to appellate review, has any
bearing on the propriety of the attorneys’ fees award presently
under review. We also note that the April 2005 attorneys’ fees
award was based upon the trial court’s determination that the
action was non-justiciable, and the trial court made no similar
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determination in support of the attorneys’ fees awarded here.
Accordingly, because the record is devoid of any basis for an
award of attorneys’ fees, and because Defendant has advanced no
authority in support of such an award, we vacate that portion of
the trial court’s order.
III. Conclusion
For the foregoing reasons, we vacate the trial court’s
award of attorneys’ fees, but affirm the trial court’s 7 March
2013 judgment and order in all other respects.
AFFIRMED IN PART; VACATED IN PART.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).