                           STATE OF MICHIGAN

                            COURT OF APPEALS



ELIZABETH HOLMES,                                                    UNPUBLISHED
                                                                     December 30, 2014
               Plaintiff-Appellant,

v                                                                    No. 315551
                                                                     Kent Circuit Court
RICHARD E. HOLMES JR.,                                               LC No. 96-003184-DM

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and SAWYER and HOEKSTRA, JJ.

SAWYER, J. (dissenting).

       I respectfully dissent.

       I agree with defendant and the trial court that the first sentence of paragraph 10 in the
judgment of divorce is ambiguous on its face. It says, “Husband and Wife will participate in the
children’s college education, based on their respective financial situation at the time the children
attend college.” As plaintiff argues, reading that sentence in its entirety, and giving effect to
every word and phrase, as courts must do when construing a contract, Trader v Comerica Bank,
293 Mich App 210, 216; 809 NW2d 429 (2011), that it could plausibly mean that the parties
were to assess their respective financial situations at the time college expenses are incurred and
then determine their respective shares of those expenses.

        However, “[i]t is hornbook law that a valid contract requires a ‘meeting of the minds’ on
all essential terms.” Kamalnath v Mercy Hosp, 194 Mich App 543, 548; 487 NW2d 400 (1992).
Furthermore, a “mere expression of intention does not make a binding contract,” id. at 549, and
that is what we have here: an expression of an intent to assist the children in their education, but
without a binding contract as to the terms of that assistance.

        The majority is correct that a contract may leave open some matters to be determined in
the future. But, as the Court explained in State Bank of Standish v Curry, 442 Mich 76, 89; 500
NW2d 104 (1993), in such cases, in order for the contract to be enforceable with respect to those
matters left open, the contract must provide for a means to resolve those terms:

               [W]here the parties have left open some matters to be determined in the
       future, enforcement is not precluded if there exists a method of determining the
       terms of the contract either by examining the agreement itself or by other usage or
       custom that is independent of a party’s mere “wish, will and desire.” An

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       enforceable agreement may be found “even though the determination is left to one
       of the contracting parties [as long as] he is required to make it in ‘good faith’ in
       accordance with [an] existing standard or with facts capable of objective proof.” 1
       Corbin, Contracts, § 95, p 402.

As defendant argues, paragraph 10 does not define “participate,” “college education,” or
“respective financial situation.” Furthermore, it does not even mention expenses, and does not
expressly call for either party to pay tuition or for room and board or other college expenses.
Nor does it provide any formula for determining the apportioning of the expenses once the
parties’ respective financial situations are assessed. Thus, the agreement does not provide a
method for determining the terms of the contract; the terms of paragraph 10 are not sufficiently
complete so as to be enforceable. In my opinion, paragraph 10 merely expresses a “wish, will
and desire.” Curry, 442 Mich at 89.

       I would affirm.

                                                            /s/ David H. Sawyer




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