Norris v. Norris

SEARS, Chief Justice,

dissenting.

Under the plain language of the divorce agreement, the trial court did not err in limiting Husband’s obligation to pay college tuition costs to eleven semesters. Accordingly, I dissent.

The majority characterizes its decision as the simple enforcement of a “clear and unambiguous” contractual provision.3 In fact, however, the majority substitutes its own language for the language of the parties, thereby replacing Husband’s limited obligation under the divorce agreement with an open-ended obligation to pay for the child’s college expenses so long as the child is attending college.

The divorce agreement provides that “Husband’s responsibility for the expenses of the tuition of the college education shall not exceed the amount of tuition of an in-State student at the University of Georgia attending the Bachelor’s program.” The majority contends that this language unambiguously limits only the “rate of tuition for which Husband would be responsible,”4 even though the parties clearly could have chosen to use the term “rate” instead of “amount” had they intended to create such a narrow limitation.

Under the majority’s interpretation, the limiting clause is really no limitation at all, because as long as the “rate” of tuition is no more expensive than that charged by the University of Georgia, Husband’s obligation is endless so long as the child chooses to attend college. To *570achieve this result, the majority relies on plainly distinguishable cases in which a party has agreed to pay “any and all” expenses of education.* ***5

Decided February 5, 2007. George M. Hubbard III, for appellant. Jones, Osteen & Jones, Billy N. Jones, for appellee.

As this Court recognized in McLain v. McLain, however, the agreement in this case was intended to specifically limit husband’s total obligation by tying that obligation to the University of Georgia’s Bachelor program, which is generally a four-year program.6 The fact that the parties chose to refer to “the college education” also suggests that the clause was intended to limit Husband’s total liability for the overall expense, rather than just the “rate” at which that liability could continuously grow.7

The divorce agreement in this case clearly contemplated that Husband would pay to give the child a fair opportunity to earn a college degree from a program that was no more expensive than the University of Georgia’s Bachelor program. Thus, the agreement provides a means to determine the maximum amount that Husband would be required to contribute towards that goal. Any payment beyond that amount would be left to Husband’s discretion. The trial court properly found that Husband’s payment for eleven semesters of tuition satisfied this responsibility. The majority errs in reversing that decision.

I am authorized to state that Justice Thompson joins in this dissent.

Majority opinion, p. 567.

Id.

Hartley-Selvey v. Hartley, 261 Ga. 700 (410 SE2d 118) (1991) (trial court erred in imposing a “reasonableness” standard on husband’s contractual obligation to pay “any and all” expenses of child’s education); see also Hall v. Day, 273 Ga. 838, 840 (546 SE2d 469) (2001) (agreement to pay “all costs and expenses for [daughter’s] college education at a public or state-supported university” did not limit duty to pay only for in-state tuition).

McLain v. McLain, 235 Ga. 659, 663 (221 SE2d 561) (1975) (agreement requiring husband to pay for college education “on a plane equal to the educational opportunities at the University of Georgia” interpreted to oblige husband to pay for four years of college education such that “the cost of such college education [does] not... exceed the costs which would be incurred at a college on a ‘plane’ with the University of Georgia.”).

In footnote 2, the majority claims that, had the parties intended to limit Husband’s overall responsibility for the college education, they would have explicitly limited his responsibility with respect to the attendant expenses, like room, board, and books, as well as tuition. The fact that there would be no other such attendant expenses, however, if the child is not enrolled in college, belies the majority’s claim.