                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CA-01772-SCT

ANDREA GAIENNIE

v.

MICHAEL McMILLIN


DATE OF JUDGMENT:                          09/27/2012
TRIAL JUDGE:                               HON. VICKI R. BARNES
COURT FROM WHICH APPEALED:                 WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    BRENT E. SOUTHERN
ATTORNEYS FOR APPELLEE:                    PENNY B. LAWSON
                                           J. MACK VARNER
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               REVERSED AND REMANDED - 05/15/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶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.

                     FACTUAL/PROCEDURAL BACKGROUND

¶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.

       ...

       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


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       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 from her obligation to make her yearly

contribution to the college fund. Neither sought modification of the decree to reflect this

alleged agreement.

¶4.    Both children attended the private school through the 2010-2011 and 2011-2012

school years. Prior to the 2012-2013 school year, Gaiennie testified that she once again

demanded a document acknowledging their oral agreement to relieve her of her obligation

to contribute to the college fund. After McMillin rebuffed Gaiennie’s request, Gaiennie

refused to continue paying tuition for the 2012-2013 school year. On February 24, 2012,

Gaiennie filed a Petition for Clarification, Enforcement and/or Modification, asking the

chancellor to confirm that precollege private-school tuition is not required under the

property-settlement agreement, or, in the alternative, if it is required, to modify the property-

settlement agreement to relieve her of the obligation to pay either the private-school tuition

or the annual college-fund contribution. Gaiennie also asked for McMillin to disclose the


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specifics of the college fund so that she could make her required contribution directly into

the fund. McMillin filed a Counter-Petition for Contempt and/or Modification of Judgment

of Divorce, arguing that Gaiennie should be found in contempt for failing to contribute to the

college fund in 2010 and 2011 and, if she is not required to pay for one-half of private-school

tuition under the agreement, that it be modified to require her to pay one-half.

¶5.    A hearing was held on August 24, 2012. In addition to the testimony discussed supra,

Gaiennie testified that she has been unable to make her yearly contributions to the

“Mississippi Impact” fund as outlined in the agreement, as the “Mississippi Impact” fund

does not exist. Instead, McMillin’s father had established a “Mississippi Education Savings

Program” for the children, a separate type of college-savings fund. The parties offered

conflicting evidence as to whether Gaiennie had made any contributions to the fund in 2007

and 2008. However, McMillin presented records of Gaiennie’s 2009 payment. Gaiennie

conceded that she made no payments in 2010 and 2011.

¶6.    On September 27, 2012, the chancellor entered a Memorandum Opinion and Final

Judgment. The chancellor made the following findings, inter alia:

       1. Gaiennie is obligated under the property settlement agreement to pay one-
       half of private-school tuition.
       2. McMillin must “immediately provide [] Gaiennie with the details and
       information regarding the . . . college fund.”
       3. Gaiennie is in contempt of court for failing to contribute to the college fund
       for the years 2007, 2008, 2010 and 2011.
       4. Gaiennie is ordered to pay $1500.00 in attorney fees.

On October 9, 2012, the chancellor denied Gaiennie’s Petition for Reconsideration and/or

Modification. Aggrieved by the chancellor’s decisions, Gaiennie timely filed the instant

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appeal on October 25, 2012. We deny Appellee’s Emergency Motion to Vacate Order and

Lift Stay.

                                            ISSUES

¶7.    Gaiennie raises the following issues, restated as follows:

       I.      Whether the chancellor erred in requiring Gaiennie to pay one-half of
               the private-school tuition.

       II.     Whether it was improper to hold Gaiennie in contempt of court.

       III.    Whether it was improper to assess attorney fees against Gaiennie.

                                          ANALYSIS

       I. Gaiennie is not obligated to pay for private-school tuition.

¶8.    “While a chancellor’s decisions in a [domestic] action are reviewed for manifest error,

a property settlement agreement is a contract, and contract interpretation is a question of law,

which is reviewed de novo.” McFarland v. McFarland, 105 So. 3d 1111, 1118 (Miss. 2013)

(citing Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008)). This Court applies a three-tiered

approach to contract interpretation. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.

2d 107, 111 (Miss. 2005). First, we apply the “four corners” test, wherein this Court “looks

to the language that the parties used in expressing their agreement.” Id. “When construing

a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Id.

“On the other hand, if the contract is unclear or ambiguous, the court should attempt to

‘harmonize the provisions in accord with the parties’ apparent intent.” Id. (quoting Pursue

Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990)). “The mere fact that the parties


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disagree about the meaning of a provision of a contract does not make the contract

ambiguous as a matter of law.” Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss.

1987).     Secondly, if the contract is unclear or ambiguous, this Court applies the

“discretionary ‘canons’ of contract construction.” Facilities, 908 So. 2d at 111. Thirdly, “if

the contract continues to evade clarity as to the parties’ intent, the court should consider

extrinsic or parol evidence.” Id.

¶9.      Gaiennie argues that, under the terms of the property-settlement agreement, she is not

obligated to pay one-half of private-school expenses. Gaiennie points to the absence of the

word “tuition” in the “school expenses” provision as a clear and unambiguous indication that

precollege private-school tuition was not part of the property-settlement agreement.

Gaiennie also argues that there was no consideration of private school at the time the

property-settlement agreement was signed. McMillin argues that the plain meaning of the

phrase “any other expense related to daycare or school” necessarily encompasses private-

school tuition, as private-school tuition is a school-related expense.

¶10.     We disagree. The absence of any reference to private school or private-school tuition

in provision three controls the issue. “When a contract is clear and unambiguous, this Court

‘is not concerned with what the parties may have meant or intended but rather what they said,

for the language employed in a contract is the surest guide to what was intended.’” Ivison

v. Ivison, 762 So. 2d 329, 335 (Miss. 2000) (citing Shaw v. Burchfield, 481 So. 2d 247, 252

(Miss. 1985)).     Looking to the four corners of the agreement, we find that it is not

ambiguous. Tuition is conspicuously absent from the “school expenses” provision. (See

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Zweber v. Zweber, 102 So. 3d 1098, 1101-02 (Miss. 2012) (holding that “flying lessons were

not included in the final judgment of divorce).

¶11.   Notwithstanding that the plain language of the agreement requires no private-school

tuition, if we accepted Gaiennie’s argument that absence of the word “tuition” creates an

ambiguity, the result would be no different, for we would first attempt to harmonize the

provisions in accord with the parties’ apparent intent. The fact that tuition was specifically

included within “college expenses,” but not “school expenses” reveals the parties’ intent that

private-school tuition was not intended under the agreement.

¶12.   Even if we went beyond the “four-corners test,” and looked to the intent of the parties,

Gaiennie would still prevail. Neither party disputes that, at the time the agreement was

signed, the eldest child was enrolled in public school. Neither party disputes that, at the time

the agreement was signed, it was their intent for the children to attend public school. The

children attended public school for nearly three years before a bullying incident prompted

consideration of private school. We find that, because private-school tuition was not

specified in the agreement, we must reverse the chancellor’s holding requiring Gaiennie to

pay for one-half of the children’s private-school tuition.

       II. The chancellor erred in finding Gaiennie to be in contempt of court.

¶13.   “The purpose of civil contempt is to enforce or coerce obedience to the orders of the

court.” Lahmann v. Hallmon, 722 So. 2d 614, 620 (Miss. 1998) (citations omitted). “A

contempt citation is proper only when the contemner has wilfully and deliberately ignored

the order of the court.” Mizell v. Mizell, 708 So. 2d 55, 64 (Miss. 1998) (citing Cooper v.

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Keyes, 510 So. 2d 518, 519 (Miss. 1987)). “In a contempt action involving unpaid child

support, when the party entitled to receive support introduces evidence that the party required

to pay the support has failed so to do, a prima facie case of contempt has been made.” Id.

(citation omitted). The burden then “shifts to the paying party to show an inability to pay or

other defense, and this proof must be clear and convincing and rise above a state of

doubtfulness.” Id. (citations omitted). “Whether a party is in contempt is left to the

Chancellor’s substantial discretion.” Id. (citation omitted).

¶14.   Under the terms of the property-settlement agreement, Gaiennie was required to

contribute $500 annually to the “Mississippi Impact Fund.” Trial testimony established that

no fund existed. Instead, McMillin’s father had established a “Mississippi Education Savings

Program.” Neither party sought to modify the agreement to reflect the correct fund. It was

impossible for her to comply with the agreement as written. Thus, it was an abuse of

discretion to hold her in contempt.

       III. The chancellor did not err in awarding attorney fees.

¶15.   “An award of attorney’s fees in domestic cases is largely a matter entrusted to the

sound discretion of the trial court.” Zeman v. Stanford, 789 So. 2d 798, 806 (Miss. 2001)

(citations omitted). “Unless the chancellor is manifestly wrong, his decision regarding

attorney fees will not be disturbed on appeal.” Id. (citations omitted). Finding Gaiennie to

be in contempt, the chancellor ordered Gaiennie to pay for a portion of McMillin’s attorney

fees. Because the chancellor ordered Gaiennie to pay attorney fees based on erroneously



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finding her in contempt, we reverse the award of attorney fees. However, the chancellor did

not err in refusing to award Gaiennie attorney fees.

                                      CONCLUSION

¶16.   The chancellor erred in requiring Gaiennie to pay for one-half of her children’s

private-school tuition. The chancellor also erred in finding Gaiennie to be in contempt, and

awarding attorney fees as a result, for failing to contribute to the Mississippi Impact Fund.

Thus, we reverse the trial court’s judgment and remand the case to the Warren County

Chancery Court for further proceedings consistent with this opinion.

¶17.   REVERSED AND REMANDED.

     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.

    COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶18.   I agree with the majority’s opinion that the chancellor erred in finding that Gaiennie

was in contempt of court. However, I also agree that the terms of the property-settlement

agreement were unambiguous. However, I disagree that tuition is not a school expense.

Therefore, I respectfully concur in part and dissent in part.

¶19.   The Court has stated that if a contract is unambiguous, “‘the intention of the

contracting parties should be gleaned solely from the wording of the contract’ and parol

evidence should not be considered.” Epperson v. SOUTHBank, 93 So. 3d 10, 16 (¶ 17)

(Miss. 2012) (quoting Turner v. Terry, 799 So. 2d 25, 32 (¶ 16) (Miss. 2001)). The Court


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must “accept the plain meaning of a contract as the intent of the parties where no ambiguity

exists.” A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So. 2d 296, 301 (¶

12) (Miss. 2006) (quoting Ferrara v. Walters, 919 So. 2d 876, 882 (¶ 13) (Miss. 2005)).

¶20.   In the case sub judice, the majority takes the position that tuition is not a school

expense. Merriam-Webster defines “expense” as a “financial burden or outlay,” equating

the term with “cost.”     Merriam-Webster Collegiate Dictionary 408 (10th ed. 1993).

Merriam-Webster goes on to define “tuition” as “the price of or payment for instruction.”

Id. at 1271. Substituting in the definition of expense, the provision would read “any other

[financial burden] related to daycare or school.” It is my opinion that such a provision would

unambiguously include “the price of or payment for instruction,” which, I would imagine,

parents across the country wholeheartedly would agree amounts to a “financial burden.”

Accordingly, I would affirm the chancellor’s holding requiring Gaiennie to pay one-half of

the children’s private-school tuition.




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