Opinion
No. 73-369
Decided October 30, 1974. Rehearing denied November 26, 1974.
On motion of wife for modification of stipulation that had been incorporated in divorce decree, trial court entered order requiring husband to pay certain medical and educational expenses incurred by the parties' children. Husband appealed.
Affirmed
1. DIVORCE — Medical Expense — Children — Not Within Stipulation — Trial Court — Properly Rule — Husband's Obligation. In divorce proceedings, there was sufficient evidence before the trial court to justify its finding that certain medical expenses incurred by the children of the parties were not within the purview of the stipulation which the parties had entered at the time of the divorce; thus, in the exercise of its jurisdiction over child support, it was proper for the trial court to rule upon the matter of the husband's obligation to pay such expenses.
2. Child — Conditional Beneficiary — Child Support Stipulation — Parties — Duty to Advise — Conditions — Maintain Eligibility. Although, in divorce action, the child is not a party to a child support stipulation of the parties, such child is a conditional beneficiary of its provisions; therefore, it is incumbent upon the parties to advise such a child as to the technicalities of her compliance with the conditions of that stipulation relative to her continuing to be eligible to receive child support.
Appeal from the District Court of El Paso County, Honorable Patrick M. Hinton.
Horn, Anderson Johnson, Louis Johnson, for plaintiff-appellant.
Kane, Donley Wills, Hayden W. Kane, for defendant-appellee.
The parties to this action were divorced in April 1970. The divorce decree incorporated the parties' detailed and comprehensive stipulation, which provided for alimony, child custody and support, and the division of the parties' property. In 1973, pursuant to the wife's motion for modification of the stipulation, the trial court ordered the husband to pay certain medical and educational expenses incurred by the parties' children. The husband appeals, contending that the stipulation precludes the court's order.
I.
As part of the stipulation, the husband had agreed "to carry [a] current medical insurance plan that would cover the children for hospitalization and doctor bills, as permitted under said plan, which is the Colorado Blue Shield-Blue Cross plan." There is no dispute that the husband complied with the terms of this portion of the stipulation. At a later time the husband purchased some additional medical insurance benefitting the children which covered extraordinary medical expenses.
In 1971, one of the children required hospitalization and psychiatric care which exceeded the coverage of the Blue Cross-Blue Shield policy. It also exceeded the coverage of the additional insurance he had purchased. The hospital brought suit against both husband and wife but obtained judgment only against the wife. The wife petitioned the trial court to require that the husband pay this debt. The husband resisted on the ground that he had no liability beyond providing the Blue Cross-Blue Shield insurance plan required by the stipulation. The trial court ruled that this particular expense was an extraordinary expense which had not been contemplated by the parties in entering into the stipulation and ordered that husband pay one-half of the balance due on the judgment. We affirm.
[1] We recognize that under some circumstances parties whose stipulation has been incorporated in a divorce decree are unequivocally bound by the provisions of the stipulation. See Lay v. Lay, 162 Colo. 43, 425 P.2d 704; Newey v. Newey, 161 Colo. 395, 421 P.2d 464. However, that is not the situation which is before use. Here, there is no specific wording in the stipulation alluding to the subject of extraordinary medical expenses. The conclusion that this type of expense was not covered or intended to be covered by the stipulation is further buttressed by the fact that the husband later recognized the deficiency and, very commendably, provided further insurance which partially solved the problem. Therefore, there was sufficient evidence before the trial court to justify its finding that these expenses were not within the purview of the stipulation and decree, and it was proper for the trial court to rule upon the matter in exercise of its jurisdiction over child support. See Russ v. Russ, 128 Colo. 321, 262 P.2d 264, and Graves v. Graves, 171 Colo. 20, 464 P.2d 291.
We have reviewed the record regarding the financial condition of the parties and all other factors to be considered in determining who should pay this debt. We need not detail all those facts for consideration here. It is evident from our review, however, that the trial court did not abuse its discretion in determining that the responsibility for the balance due over and above insurance payments could be borne one-half by each party. Graves v. Graves, supra.
II.
The second issue presented is whether the trial court erred in ordering the husband to pay the college expenses for one of the children. The pertinent clause of the stipulation reads, in part, as follows:
"Plaintiff further agrees to pay the necessary college expenses of the child or children who chooses to accomplish a college education . . . . Each of said children shall demonstrate an ability to compete at college level in education and shall take the required number of hours per quarter or semester to complete each year's required hours with satisfactory grades to be promoted to the succeeding class and to complete said education within a four year academic period to obtain a Bachelor's Degree . . . . "
One of the children did not carry sufficient hours during one school year to be eligible to be promoted to the succeeding year's class, and the father thereafter refused to pay for the further education of the child.
[2] The record contains evidence that neither the husband nor the wife explained the quoted provision to the child and that there were extenuating circumstances which prevented the child from carrying the requisite hours during the particular year involved. The record also shows that, upon learning of the requirement, the child made arrangements to make up the deficient hours so that graduation would be accomplished on the schedule prescribed by the stipulation. The trial court ruled that this misunderstanding on the part of the child was justifiable under all the circumstances. We affirm that ruling. Although the child is not a party to this agreement, she is a conditional beneficiary of its provisions. See Forman v. Forman, 17 N.Y.2d 274, 270 N.Y.S.2d 586, 217 N.E.2d 645, and cases cited at 34 A.L.R.3d 1357. Therefore, it was incumbent upon the parties to advise her as to the technicalities of her compliance with the conditions.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.