Snell v. Snell

Cureton, Judge

(concurring in part and dissenting in part):

*416I agree with the majority’s conclusion that the provision in the divorce decree regarding the father’s obligation to pay certain college costs for the daughter to attend “any state University in the state of South Carolina” is unambiguous. Therefore, no interpretation is permitted by the family court. I disagree with the majority that such a determination ends the matter.

The family court held both parties should bear the burden of the daughter’s college expenses and any charges not paid by the trustee should be paid by the parties on an equal basis. I agree with the majority opinion that it was error for the family court to require the mother to pay one-half of the tuition, room, board, and college fees not paid by the trustee. However, I would hold that the basis for the error is the failure of the father to demonstrate changed circumstances and not solely upon an interpretation of the language of the agreement.

In Kirsch v. Kirsch, 383 S. E. (2d) 254 (S. C. Ct. App. 1989), this court held that an order for the payment of college expenses was a form of child support and the obligation was not automatically stayed by an appeal of the order to the Supreme Court under Supreme Court Rule 41(B).

The appellate courts of this state have held many times that family courts may modify child support provisions in a separation agreement which have been incorporated into a divorce decree if in the best interest of a child to do so regardless of the agreement’s provisions. Moseley v. Mosier, 279 S. C. 348, 306 S. E. (2d) 624 (1983); Miller v. Miller, 280 S. C. 314, 313 S. E. (2d) 288 (1984); Small v. Small, 286 S. C. 87, 332 S. E. (2d) 769 (1985); Ratchford v. Ratchford, 295 S. C. 297, 368 S. E. (2d) 214 (Ct. App. 1988). The husband asserted in his answer that the family court should interpret the agreement to require him to pay college tuition based on the in-state rate for a North Carolina resident. Additionally, he counterclaimed for a reduction in his support obligations to his children, including the college education expenses, because there had been a change of conditions. The trial court implicitly found changed circumstances and ordered a modification of the husband’s obligations. The question it seems to me now posed is whether the alleged change of conditions warrants the modifications ordered by the trial court.

*417While the father has remarried and has a minor child by his new wife, his annual income has doubled since the divorce.1 His financial declaration indicates he has accumulated a pension fund of $20,000 along with stocks and bonds valued at $20,000. He also reports equity in real estate of $60,000 and personal property valued at $22,000. Further, the father’s child support obligations over the past thirteen years have not increased and he admitted he had made no additional financial contributions to the children other than gifts.

The mother has provided for the children since the divorce except for the child support payments. She has also provided for her daughter’s college expenses in excess of the tuition, room, board, and fees. The mother has substantially increased her income since 1975.2 She has also remarried. However, her financial declaration does not indicate an accumulation of property similar to the father. She does not own any stocks or bonds, a pension fund, or real estate.

A family court may modify child support upon a proper showing of a change in the supported child’s needs or the supporting parent’s financial ability. Smith v. Smith, 275 S. C. 494, 272 S. E. (2d) 797 (1980); Calvert v. Calvert, 287 S. C. 130, 336 S. E. (2d) 884 (Ct. App. 1985). The father has not convinced me that his financial condition has worsened. Certainly the daughter’s needs have not lessened.

The family court also reduced the father’s support obligation to the son by $150 per month because the son is twenty years old, his mental condition has improved since the divorce, and he is employed on a full-time basis. The court reduced the support for the daughter by $75 per month because the father was required to pay substantial college costs. I agree the record supports a reduction in support for the son, but I do not agree as to the daughter.

The son has done well to overcome his handicap. Although the record indicates his employment opportunities may be limited, he has full-time employment at a salary of approximately $11,000 per year. He has obtained a car and saved *418approximately $4,000. The record indicates he has insurance coverage through his employment. Moreover, it seems apparent to me that the purpose of the provision for support past the children’s eighteenth birthday was to provide support for them while in college. Because the son is not going to college the purpose of the provision has already been satisfied. These factors support the family court’s decision to reduce the child support for the son. I would find no abuse of discretion. Hicks v. Hicks, 280 S. C. 378, 312 S. E. (2d) 598 (Ct. App. 1984) (a petition for modification of child support is addressed to the sound discretion of the trial court).

In my opinion, the record does not support a reduction in child support for the daughter. I have previously outlined the father’s financial picture. As a full time college student, the daughter has worked during vacations and holidays. The father’s obligation to assist with the college education for his daughter is an insufficient change of circumstances to justify a modification in child support. This obligation has been in place since 1975. His child support payment has not changed since then. In light of all the evidence I would reverse the reduction in child support for the daughter because the father tus not demonstrated sufficient change of conditions.

I would further hold that the wife’s other contentions on appeal are without merit and summarily reject them under Section 14-8-250, Code of Laws of South Carolina, 1976, as amended.

The father testified that considering the impact of inflation, his 1988 salary was roughly equivalent to his 1975 salary.

The mother’s income was $6,000 per year in 1975. She had just changed jobs prior to the hearing in this case and was earning $1,700 per month.