Opinion
File No.: CN04-10331 Petition No.: 18-10938
07-29-2019
Re: J. L. W. v. J. J. H.
Kara M. Swasey, Esquire
Bayard PA
600 N. King Street, Suite 400
Wilmington, DE 19801 Gregory D. Stewart, Esquire
409 South Ridge Avenue
Middletown, DE 19709
LETTER DECISION AND ORDER
Petition Type: Specific Performance Dear Ms. Swasey and Mr. Stewart:
The matter before the Court is a Petition for Specific Performance Under a Separation Agreement ("Petition"), filed pro se by J L. W ("Wife"), represented by Kara M. Swasey, Esq., against J J. H ("Husband"), represented by Gregory D. Stewart, Esq. The Petition alleges that Husband is not in compliance with the provisions set forth in the parties' Settlement Agreement, which was executed on December 1, 2004 ("2004 Settlement Agreement"). The Petition specifically alleges that Husband is not equally sharing in the expenses associated with the college education of the parties' children. The main issue in this case is whether the 2004 Settlement Agreement provision regarding the payment of college expenses is enforceable. After reviewing all the evidence presented and the applicable law, the Court finds that the 2004 Settlement Agreement provision in dispute is enforceable.
PROCEDURAL HISTORY
Wife and Husband were married on August 15, 1995, and were divorced by Final Decree of this Court on February 17, 2005. The parties had two children: C M. H ("C ") (born , 1995) and A J. H ("A ") (born , 1999). Prior to the issuance of the Final Divorce Decree, the parties entered into the 2004 Settlement Agreement. The parties then incorporated the 2004 Settlement Agreement into the Final Divorce Decree. The Court notes that Husband was pro se at the time the 2004 Settlement Agreement was signed and incorporated.
On April 6, 2018, Wife filed the pending Petition and Husband was served notice of the Petition on June 6, 2018. Husband failed to file a response with the Court by June 26, 2018. Husband also failed to participate in the call of the civil calendar on July 12, 2019, even though proper notice was given. On July 24, 2018, Wife filed a Motion for Default Judgment as Husband had failed to appropriately respond to the pleadings. Husband did not file a response to the Motion for Default Judgment. Therefore, the Court entered an Order granting the Motion for Default Judgment on August 9, 2018, and the Court entered an Order granting Wife attorneys' fees on August 16, 2018. On September 28, 2018, Husband filed a Motion to Vacate the Default Judgment. Wife filed a Response to the Motion on October 11, 2018, and the Court denied the Motion on October 12, 2018. Husband filed a Motion for Reargument on October 19, 2018 and Wife filed a Response to the Motion on October 26, 2018. The Court granted Husband's Motion for Reargument on November 11, 2018. The Court found that Husband, who was not represented at the time, mistakenly believed that he was not required to respond to the previous pleadings as there was a scheduled case management teleconference. The Court found that Husband's mistaken belief did not rise to the level of gross negligence and therefore constituted excusable neglect, as opposed to gross negligence, and the case should be heard on the merits. Both parties were fully heard and represented by counsel on May 28, 2019, when a full trial on the merits occurred.
FACTUAL BACKGROUND
On December 1, 2004, the parties signed the 2004 Settlement Agreement. Paragraph number seven of the 2004 Settlement Agreement included a provision for college education expenses: "[Wife] and [Husband] shall share equally in all expenses associated with college education." C did not seek an expensive college education and Wife is not seeking specific performance of the 2004 Settlement Agreement as to C 's educational expenses. Wife is only seeking specific performance as to A 's college education expenses.
In the fall of 2016, A began looking at colleges during his senior year of high school. A was accepted to several colleges including East Carolina University in Greenville, North Carolina. A decided to attend East Carolina University and he did not seek the advice or counsel of Husband. A began attending East Carolina University in the fall of 2017. The 2004 Settlement Agreement is silent as to who picks the college or university A shall attend. Both parties would have been aware that A would be an adult when he attended college and that college would be expensive. Despite knowing about the agreement, it does not appear as though either party made any plans to pay for the children's college educations. To fund A 's education, Wife took out parent loans and incurred several out of pocket expenses.
Wife requested that Husband be responsible for half of all the expenses Wife paid on A 's behalf while he has been in college. Wife argues that the 2004 Settlement Agreement covers tuition, books, university fees, housing, U-Hauls, meal plans, and fraternity dues. Husband argues that the college expenses provision in the 2004 Settlement Agreement should be void for vagueness. Husband believes that the definition for "all expenses associated with college education" is unclear. Husband argues in the alternative that A should not have been allowed to choose the college or university on his own and compel Husband to pay for the education no matter the cost. Husband argues that forcing him to pay the unreasonable costs of a college education that A chose would be unconscionable.
See Petitioner's Exhibit #10. Wife explained that she paid $10,364.50 in tuition each semester for the Fall of 2017, Spring of 2018, Fall of 2018, and Spring of 2019. This totals $41,458.00 in total tuition costs thus far.
See Petitioner's Exhibit #11. Wife explained that she paid $948.98 for books in the Fall of 2017. In the Spring of 2018 she paid $709.73 for books. In the fall of 2018 she paid 781.84 for books and in the Spring of 2019 Wife paid $736.79 for books. Totaling $2327.34 for four semesters of books.
See Petitioner's Exhibit #10
See Petitioner's Exhibit #10
See Petitioner's Exhibit #6
See Petitioner's Exhibit #10
See Petitioner's Exhibit #2 and #12
JURISDICTION AND LEGAL STANDARD
Under 13 Del. C. §507(a), this Court has subject matter jurisdiction over "any issues resulting from the construction, reformation, enforcement or rescission of an agreement," incident to a marriage, separation, or divorce.
The Court does not have the authority to order a parent to pay for a child's college education, but the Court has the authority to enforce separation agreements. A separation agreement is a contract, and the Court must analyze contracts between parties under contract law. The Delaware Supreme Court has ruled that: "Delaware adheres to an objective theory of contracts, [and so] the 'contract's construction should be that which would be understood by an objective, reasonable third party.' If a contract is unambiguous, extrinsic evidence may not be used to... vary the terms of the contract."
See Shopa v. Delaurentis, No. 96-30169, 2005 WL 878713, at *4 (Del. Fam. Ct. September 16, 1997).
See, e.g., L.M.H. v. D.S.H., No. 04-15855, 2005 WL 3662348, at *3 (Del. Fam. Ct. June 14, 2005).
Exelon Generation Acquisitions, LLC v. Deere & Co., 176 A.3d 1262, 1267 (Del. 2017) (internal citations omitted).
LEGAL ANALYSIS
I. The Term "college education" is Unambiguous.
A separation agreement is a contract between the parties and this Court must apply applicable contract law. Further, the determination of whether a contract term is ambiguous is a question of law. To determine whether a contract term is ambiguous, the Court must first look at whether the language of the contract is "plain and clear on its face" or "its language conveys an unmistakable meaning." If the contract term is clear or has a generally prevailing meaning, no extrinsic evidence can be considered by the Court. If the term has a generally prevailing meaning, the context or understanding the parties had in creating the agreement is irrelevant.
See O'Grady v.Seefeldt, No. 94-00072, 1996 WL 258385, at *2 (Del. Fam. Ct. February 29, 1996).
Id.
Id.
See id.; See also Exelon, 176 A.3d at 1267.
See O'Grady, No. 94-00072, 1996 WL 258385, at *2.
This Court has previously held that "college education" has a generally prevailing meaning which limits the costs to tuition and books. Based on this Court's previous findings, the term "college education" is unambiguous and therefore, no extrinsic evidence of the parties' intent can be considered.
See id at 3. --------
II. Where the 2004 Settlement Agreement is Silent , the Court Declines to Imply a
Further Agreement
Husband additionally argues that if the term is unambiguous, the 2004 Settlement Agreement as to college expenses is still unenforceable as he believes the provision to be unconscionable. Husband argues that A should not have been allowed to choose the college on his own and compel Husband to pay for the education no matter the cost. Husband argues that he should have been consulted about the college application and financial aid process. Husband makes this argument based on the fact that the 2004 Settlement Agreement is silent as to who chooses the college and whether Husband would have any input.
Under applicable contract law, the Court assumes that the 2004 Settlement Agreement is the full and complete agreement of the parties. However, even if the Court were to consider extrinsic evidence under the parole evidence rule, there is no evidence that there was an additional silent agreement between the parties for Husband to be included in the college decision making process. Further, there is no evidence that there was an agreement between the parties for Husband to have final decision making authority as to A 's choice of college. Absent clear and definite evidence that such an agreement existed, the Court declines to impose an implied provision of the 2004 Settlement Agreement when the 2004 Settlement Agreement was specifically silent as to whom chooses the college of admission. There was no testimony offered from Husband regarding his understanding of the agreement and if that understanding was different than Wife's understanding. Husband did not testify that his agreement to pay half the cost of the children's college education was conditioned upon being included in the college selection process or his involvement in filling out the FAFSA forms.
Further, the Court finds that the 2004 Settlement Agreement is not unconscionable as Husband had equal bargaining power at the time the 2004 Settlement Agreement was made. Wife testified that Husband negotiated with several sections of the 2004 Settlement Agreement, but he did not have any changes or recommendations for the provision currently in dispute. While Husband was unrepresented at the time, Husband did not testify or provide the Court with any evidence that he was at a major disadvantage in bargaining power in 2004. Also, the agreement makes both parties equally responsible. Husband has the same responsibility as Wife and the Court has no reason to find that their economic situations are such that this is inequitable, and certainly no evidence that it rises to the level of unconscionable. The Court has no evidence to make a finding that the 2004 Settlement Agreement is unconscionable.
CONCLUSION
This Court finds that the term "college education" is unambiguous and a clear question of law. This Court defines "college education" as tuition and books only. The Court declines to imply that any outside agreement was made beyond the 2004 Settlement Agreement and the Court finds that the 2004 Settlement Agreement is not unconscionable. Husband shall reimburse Wife for half of all tuition and book expenses incurred thus far. The Court notes that Wife has taken out parent loans for a portion of the cost of A 's education and therefore Wife is not out of pocket at this time for those amounts and Husband shall pay Wife if, as and when she pays the loans. Wife shall notify Husband when she starts repaying the loans and Husband shall reimburse her on a monthly basis for one half the payment. Husband shall then pay half of all tuition and book costs to be incurred in the future. Husband can take out loans to pay his portion of the college expenses.
IT IS SO ORDERED this 29th day of JULY, 2019 that :
1. Wife's Petition for Specific Performance is GRANTED.
2. Husband shall pay Wife $20,729 for tuition reimbursement and $1,163.67 in book reimbursement. Husband shall have 60 days from the date of this Order to reimburse Wife for any payments already made, exclusive of payments made through loans.
3. With respect to any costs paid by Wife through loans, Wife shall notify Husband when she makes payment on the loans and shall provide documentation of the payments and Husband shall reimburse Wife for half the monthly payments as she pays.
4. For future years, Wife shall send Husband a copy of the bill for tuition expenses incurred each semester as soon as it is available and Husband shall pay his portion of the cost of tuition by the due date set by the school.
5. Wife shall send Husband a copy of the receipt for books purchased and Husband shall reimburse Wife for the cost of the books within 30 days of receipt of the receipt.
6. Mother's Counsel may submit a Motion and Affidavit for Attorneys' fees within 10 days of the date of this Order.
SO ORDERED
/s/ _________
FELICE GLENNON KERR, JUDGE FGK/jw Date emailed:
Date mailed: