COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT. DATE OF JUDGMENT: 09/27/2012. TRIAL JUDGE: HON. VICKI R. BARNES.
FOR APPELLANT: BRENT E. SOUTHERN.
FOR APPELLEE: PENNY B. LAWSON, J. MACK VARNER.
BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ. WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶1. Today we consider whether the Warren County Chancery Court's finding that Andrea Gaiennie was required under a property-settlement agreement to pay for one-half of her children's private-school tuition, and a related contempt issue were in error. We reverse and remand.
¶2. On May 15, 2007, Andrea Gaiennie and Michael McMillin entered a divorce decree on the ground of irreconcilable differences. In conjunction with the divorce decree, the parties entered into a property-settlement agreement. At the time of the divorce, Gaiennie and McMillin had two children, ages seven and three. The agreement provided for joint legal custody, with McMillin having primary physical custody of the two children. The agreement provided in part:
3. Child Support and School Expenses. Wife will not be required to pay child support to Husband, as Husband acknowledges and represents unto the Court that he has sufficient income in excess of that set out in the Mississippi Child Support Guidelines to fully support the minor children in his custody without contributions of child support from the Wife. However, Husband and Wife agree that each will pay one-half of any and all daycare expenses, and any other expenses relating to daycare or school, including school supplies, and sports activities for the minor children, including the costs of any uniforms, fees, and travel expenses for sports activities.
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12. College Education and Expenses. Husband will continue payments to the Mississippi Impact for the minor children for their college tuition and Wife agrees to contribute and pay $500.00 per year to the Mississippi Impact fund for the minor childrens' college tuition beginning in 2007. Husband and Wife further agree that whatever college expenses are not covered by the Mississippi Impact fund, that as such college expenses that are not covered become due, Husband and Wife will discuss and confer with one another as to which are reasonable for college for the minor children, they and will [sic] decide, if possible, the amount that each will pay toward said college expenses, and if they cannot agree, then Husband and Wife agree that the Chancery Court of Warren County will make such decisions regard[ing] the college expenses for the minor children. That this agreement will extend throughout the attainment of a bachelor's degree or equivalent. This obligation may extend past the twenty-first birthday of either child, but it shall not extend past the twenty-third birthday of either child. Total expenses for which the Husband and Wife may be responsible and may agree on include the following: tuition, room and board, books, student fees, transportation expenses, fraternity or sorority dues, fees or expenses, and a reasonable amount of discretionary spending money. Husband and Wife further agree to consult with one another and with each minor child as to the choice of the appropriate college or university. The college or university shall be selected by the parties and the child, the majority rule.
¶3. At the time of the divorce, the seven-year-old was enrolled in a public school, and the three-year-old attended daycare. The older child continued to attend public school. The younger child was enrolled in public school upon reaching school age. The children continued to attend public school through the 2009-2010 school year. However, after a bullying incident in 2010, the children were enrolled in a private school, paid for equally by Gaiennie and McMillin. Gaiennie testified that, in exchange for her help paying for private school, McMillin agreed to release Gaiennie ...