concurring in part and dissenting in part:
The majority has found that the trial court erred (1) in requiring petitioner, Douglas Gowdy, to pay $4,966 toward his daughter’s college expenses and (2) in ordering him to maintain his daughter as a named insured under a specific insurance policy. The majority affirms the part of the order (3) awarding respondent attorney fees in the amount of $300. I agree with the analysis on the second and third issues and concur in those portions of the decision. However, I believe the reasoning on the first issue is flawed and I, therefore, respectfully dissent from that part of the opinion.
As recounted by the majority, the requirement of the parties’ separation agreement was that each parent, Robyn and Douglas, was obligated to “pay 10% of the college expenses incurred by their children, Elizabeth Ann Gowdy and Dawn Renea Gowdy.” The responsibility for the remaining 80% of their “tuition, room, board, books, fees, travel, food, clothing, lab fees, yearly living expenses, gasoline, and automobile expenses” fell on the daughters. With regard to this balance, the judgment order stated: “The parties agree that it is in the best interest of their children for the children to secure financing of their education through scholarships, grants, fellowships, work study programs and educational loans.” The undisputed facts indicate that Dawn, in fact, secured scholarships and grants to help her defray her 80% of the total costs incurred for her education.
The majority relies on the Alabama case of Arnett v. Arnett, 812 So. 2d 1246 (Ala. Civ. App. 2001), and the Georgia case of Norrell v. Norrell, 236 Ga. 797, 225 S.E.2d 305 (1976), to support the conclusion that Dawn’s full annual college costs in the amount of $49,660 had never been incurred. I believe the facts of this case, as set out by the majority and summarized above, are so substantively and qualitatively different from those in Arnett and Norrell that they render those cases totally inapposite.
In Arnett, the court quite reasonably found that costs for room and board at Auburn University had not been “incurred” by a student who lived at home rather than on campus. In Norrell, the father, who was required by court order to pay the entire cost of his son’s tuition at the Juilliard School of Music, was quite properly allowed to offset the student’s $800 scholarship because all that was actually owed by the father was $1,890.
In significant contrast to the circumstances of those two cases, the order in the instant case directed Dawn to secure scholarships and grants to help satisfy her 80% of the college costs. The expenses for tuition, room, board, books, fees, travel, food, clothing, lab fees, yearly living expenses, gasoline, and automobile expenses totaled $49,660. That entire amount had been or was being incurred and had to be paid. To help defray her lion’s share of the costs, Dawn had lined up a financial assistance package which included the subject scholarships and grants. To conclude that, because she has secured those to satisfy her portion of the expenses, the costs had not been incurred or did not exist defies logic. Moreover, to use part of Dawn’s 80% to relieve her father of his obligation to pay his 10% reduces the assets available to her for the other, more personalized costs for which she is responsible. In addition, such a reduction constitutes an unjustifiable windfall for Douglas.
In my opinion, the trial court was absolutely right in requiring Douglas to pay the entire $4,966 and I would affirm the decision on that issue.