This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic 2nd Reporter
APPEALED FROM: Superior Court, Windsor Fam. Division. DOCKET NO. 247-5-94 Wrdm. Trial Judge: Katherine A. Hayes .
Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Beth Robinson, Associate Justice.
[¶ 1] In the above-entitled cause, the Clerk will enter:
[¶ 2] Father appeals a decision by the family division of the superior court requiring him to pay mother $8,047 to retroactively equalize their respective payments for their daughter's college education. Father argues that: (1) the provision in the final divorce order addressing the payment of college expenses is merely aspirational and does not require the parties to evenly divide the college expenses; and (2) in any event, the court failed to make findings that support its award. We affirm.
[¶ 3] The parties divorced in December 1994, when their daughter was a small child. The relevant provision of the final divorce order, which was based on the parties' stipulation, states as follows:
The parties recognize the importance of providing for a college education for the minor child. These expenses will usually include tuition, room and board and incidentals. The parties shall share, to the extent possible, the costs of providing for a college education for the minor child. To the extent that money is not available to pay college costs, all efforts shall be made to provide all information necessary to complete loan and grant applications.
[¶ 4] In May 2013, the parties' daughter graduated from the University of Vermont (UVM). Both parties had made contributions to a college education fund for their daughter. Approximately one month before their daughter's graduation, mother filed a motion to enforce the college-expenses provision of the divorce order, arguing that she had paid more than her share of their daughter's college expenses.
[¶ 5] The trial court held a hearing on the motion in August 2013. Both parties appeared pro se, testified, and submitted exhibits. Four weeks after the hearing, the trial court issued a decision finding that the parties had agreed to each pay half of their daughter's college expenses and ordering father to pay mother $8,047 to equalize those payments.
[¶ 6] Father retained counsel and appealed the trial court's decision to this Court. He first argues on appeal that the court committed reversible error by enforcing the merely aspirational language of the provision. According to father, the provision plainly did not obligate either party to pay half of their daughter's college expenses, or even half of the parental portion of those payments. In father's view, the provision merely states " that the parents will try, within the limits imposed by their respective means and financial obligations, to share equally in paying college expenses."
[¶ 7] This argument reflects a marked departure from father's approach before the trial court. At the beginning of the motion hearing, the court stated that it would have to decide if the provision in question was enforceable, noting that it " sounds kind of like an aspiration, a goal, a plan, a hope that you both had, that you would each be able to contribute." Mother responded that when the parties worked out their 1994 stipulation they agreed to reduce father's child support obligation " based on the fact we both agreed that we would share the cost for her college equally." Rather than challenging mother's statement, father stated as follows: " Of allowable college expenses, I can document that I've paid more than twice what [mother] has paid for [daughter's] college." From then on, through the entire hearing, the parties essentially argued about what payments were allowable college expenses and who paid more for those college expenses. Specifically, the point of dispute centered on whether money mother obtained from the parties' college fund went to " allowable college expenses." Father argued that money mother paid for uninsured medical expenses, automobile insurance, and living expenses did not qualify as college expenses under the stipulation. Mother countered that husband had orally agreed to pay automobile expenses because of the tuition saved by their daughter not going to an-out-of-state school, and that the living expenses were for partial board and rent during her last two years of school after their daughter moved out of the student dormitory.
[¶ 8] The court indicated at the close of the hearing that " it's possible" it would find the college-expenses provision unenforceable, but apparently the parties' approach at trial -- arguing exclusively about who paid more college expenses -- was the basis of the court's finding that " [b]oth parties agree that the plan was that each of them ...