An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-946
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 February 2014


JUDSON H. BLOUNT, III,
     Plaintiff

      vs.                                     Pitt County
                                              No. 91-CVD-756
ROBIN W. LEMAIRE,
     Defendant


      Appeal by Plaintiff from judgment and order entered 7 March

2014 by Judge David A. Brantley in Pitt County District Court.

Heard in the Court of Appeals 9 January 2014.


      Edwin M. Hardy for Plaintiff.

      Susan K. Ellis, PLLC, by Susan K. Ellis, for Defendant.


      DILLON, Judge.


      Judson H. Blount, III (Plaintiff), appeals from the trial

court’s     judgment    and   order    awarding    a   monetary     judgment    and

attorneys’ fees in favor of Robin W. Lemaire (Defendant), in

connection with Plaintiff’s purported breach of an agreement to

pay the college expenses of the parties’ two children.                     For the

following reasons, we affirm in part and vacate in part.

                    I. Factual & Procedural Background
                                      -2-
    Plaintiff and Defendant, formerly husband and wife, have

two children from their marriage, Avery and Kallie.                On 11 May

1990,   while   their     children   were   still    minors,   Plaintiff   and

Defendant    executed       a   Separation     and     Property   Settlement

Agreement    (the       Separation   Agreement),       which   includes    the

following provision (the Education Provision) concerning payment

of their children’s educational expenses:

            EDUCATIONAL EXPENSES.     . . .       If the
            children of the parties shall be enrolled in
            a college or university beyond his or her
            eighteenth (18th) birthday, which college or
            university shall be selected by the child
            and the parties to this Agreement, the costs
            of room, board, and tuition of that college
            or university for each child so enrolled
            shall be paid by [Plaintiff].     [Plaintiff]
            agrees to provide reasonable spending money
            for the child while attending school.

The parties agreed to incorporate the terms of the Separation

Agreement   into    a    judgment    for    absolute   divorce,   which    was

entered in Pitt County District Court on 23 March 1992.

    In May 2000, a consent order was entered through which

Plaintiff agreed to pay Defendant $2,000.00 per month in child

support.    This consent order referenced the Education Provision,

recognizing that Defendant had, inter alia, waived any right to

spousal support in exchange for Plaintiff’s promise to pay the

children’s college expenses.
                                               -3-
       On 19 August 2004, Plaintiff filed a motion seeking credit

towards       his    child     support       obligation      for     additional        living

expenses that he had been paying on Avery’s behalf.                                 The court

denied       Plaintiff’s       motion        by    order   entered    15     April      2005,

reasoning that the May 2000 consent order “contains clear and

unequivocal         language      and    terms       indicating     that    each      of    the

parties       intended       it   to    be    non-modifiable         as    an   integrated

agreement       and    Order      based       on     reciprocal     consideration           and

without regard to any change in circumstances.”                            The court also

ordered Plaintiff to pay Defendant’s attorneys’ fees on grounds

that Plaintiff’s motion had presented “a complete absence of a

justiciable issue of law or fact . . . .”

       In the fall of 2005, Avery entered Peace College in Raleigh

as a full-time student.                 Plaintiff states that Avery performed

“adequately” until the fall 2007 semester, when Avery failed all

five of her courses, and after which Plaintiff informed Avery

that    he    would    not    pay      her    tuition,     board,    or    other      college

expenses until she passed a semester “under her own steam.”

Avery    acknowledged         her      understanding       and    obtained      a    loan    in

order to pay her college expenses for the spring 2008 semester.

Although her grades improved, Avery left Peace College after the

spring 2008 semester.               Plaintiff resumed his payment of Avery’s
                                             -4-
college    expenses       when       Avery    subsequently         enrolled    at     Pitt

Community College, where she completed a two-year degree in May

2010.

       Kallie enrolled as a full-time student at the College of

Charleston in the fall of 2008.                    Plaintiff informed Kallie in

2010    that   he    would     not    pay    her   college    expenses       beyond   her

fourth    year      of   enrollment.          Following      her     fourth    year    of

studies, however, Kallie still needed one additional semester to

complete her degree.             Accordingly, Kallie obtained a loan to

finance her final semester and graduated in December 2012.

       On 23 August 2012, Defendant filed a motion in the cause

and for attorneys’ fees, seeking (1) reimbursement for student

loan payments and other college expenses that she had paid on

behalf    of   Avery     and    Kallie;      and    (2)    court    costs,    including

attorneys’ fees that she had incurred in bringing this action.

Following a hearing on these matters, the trial court entered a

judgment and order on 7 March 2013.                       Therein, the trial court

awarded Defendant a judgment in the principal amount of $26,236;

ordered Plaintiff         to pay off          an outstanding student loan on

Kallie’s behalf; and ordered Plaintiff to pay Defendant’s court

costs, including attorneys’ fees.                  From this judgment and order,

Plaintiff appeals.
                                                 -5-
                                        II. Analysis

                                A. Standard of Review

       “It is well settled in this jurisdiction that when the

trial   court      sits    without       a   jury,     the       standard    of    review    on

appeal is whether there was competent evidence to support the

trial court’s findings of fact and whether its conclusions of

law were proper in light of such facts.”                         Shear v. Stevens Bldg.

Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992).                               “Where

there    is    competent         evidence         to   support       the     trial    court’s

findings      of   fact,        those    findings          are     binding    on     appeal.”

Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732,

734 (2009).

                   B. Plaintiff’s Contractual Obligations

       Plaintiff contends that the trial court erred in awarding

damages to Defendant as reimbursement for Defendant’s payment of

some of the children’s college expenses.                         We disagree.

       “[O]ur case law . . . clearly establishes that a parent can

assume contractual obligations to his child greater than the law

otherwise     imposes.           Thus,       a    parent     may    expressly        agree   to

support his child after emancipation and beyond majority, and

such    agreements        are    binding         and   enforceable.”           Williams      v.

Williams, 97 N.C. App. 118, 122, 387 S.E.2d 217, 219 (1990)
                                           -6-
(citations        omitted).              “Where        issues      surrounding         the

interpretation       of     the    terms    of    a    contractual       agreement     are

concerned, the generally accepted rule is that the intention of

the     parties     controls,       and     the       intention    can       usually   be

determined by considering the subject matter of the contract,

language employed, the objective sought and the situation of the

parties at the time when the agreement was reached.”                           Robertson

v. Hartman, 90 N.C. App. 250, 252, 368 S.E.2d 199, 200 (1988)

(citing Pike v. Wachovia Bank and Trust Co., 274 N.C. 1, 161

S.E.2d 453 (1968)).          “When the language of a written contract is

plain    and   unambiguous,        the     contract      must     be    interpreted     as

written and the parties are bound by its terms[.]”                             Five Oaks

Homeowners Ass'n, Inc. v. Efirds Pest Control Co., 75 N.C. App.

635, 637, 331 S.E.2d 296, 298 (1985).

      Here, the parties agreed to incorporate the terms of the

Separation Agreement into their divorce judgment.                            As part of

the     Separation     Agreement,          Plaintiff      agreed        to   pay   their

children’s        college     expenses       in       exchange         for   Defendant’s

agreement to, inter alia, waive any claim against Plaintiff for

spousal support.          Plaintiff acknowledges the Education Provision

and his obligations thereunder, but contends that because it is

silent    with    respect     to    when    such      obligations       terminate,     the
                                             -7-
trial court should have read a term of reasonable duration into

the provision.           Although we agree in principle with Plaintiff’s

position to a certain extent – for instance, we do not believe

that the Education Provision’s failure to specify the duration

of Plaintiff’s obligation to pay his daughter’s college expenses

would obligate Plaintiff to pay such expenses indefinitely – we

do     not     believe     that      application         of   this       principle        helps

Plaintiff in the present case.

       With     respect        to    Kallie,       Plaintiff          asserts      that     his

obligation to pay her college expenses should have ended at the

close of Kallie’s fourth year at the College of Charleston,

since four years represented “sufficient time” for Kallie to

complete her four-year degree.                      In short, Plaintiff contends

that it was unreasonable to require him to pay Kallie’s college

expenses for the one additional semester that Kallie needed to

complete her degree.                We are not persuaded.                While it may be

true    –    and    perhaps     anticipated        in     many    instances     –    that    a

college       student      will      complete       a    four-year        degree     in    the

“traditional”           four-year       period,          it      is     also    reasonably

foreseeable         that   a   student      might       require       additional    time    to

complete his or her degree.                 Plaintiff, who was an attorney at

the     time       he   entered      into    the        Separation        Agreement       with
                                           -8-
Defendant,     could        have    accounted      for     this       possibility       and

negotiated     for    inclusion       of   a     provision       in    the    Separation

Agreement limiting the duration of his college-expense-related

obligations.          Restricting      our     analysis        and    holding      to   the

circumstances presented, where there exists a valid contractual

agreement      unambiguously        obligating       one       party’s       payment     of

college-related expenses incurred by a third-party beneficiary

without specifying when the obligation terminates, and where the

beneficiary enrolls one additional semester in order to complete

a four-year degree, we conclude that the trial court did not err

in    construing      the     parties’     Separation          Agreement      so   as   to

obligate Plaintiff with respect to Kallie’s college expenses in

question.

      Plaintiff further contends that the trial court erred in

obligating him to pay Avery’s college expenses for her spring

2008 semester at Peace College in light of the fact that Avery

had   failed    all    five    of    her   courses       the    preceding       semester.

Plaintiff insists that his obligation to pay Avery’s college

expenses should have terminated when Avery failed to perform

“adequately” and, further, that because the Separation Agreement

fails to specify what level of performance was “adequate,” “the

Court should step in to rule what is reasonable.”                            We disagree
                                     -9-
with these contentions for reasons similar to those articulated

above relating to Kallie’s college expenses.                  While we do not

believe that the Education Provision can be properly construed

as requiring Plaintiff to pay for semester after semester of

poor    academic    performance      indefinitely,       it     is    certainly

foreseeable that a college student such as Avery might perform

poorly in a given semester, ultimately requiring that she extend

her coursework beyond the traditional four-year period.                    Thus,

given the circumstances presented, we conclude that the trial

court   did   not   err   in    obligating   Plaintiff    with       respect   to

Avery’s college expenses at issue.             See Barker v. Barker, __

N.C. App. __, 745 S.E.2d 910 (2013) (holding that the father,

who had agreed to pay his daughter’s education so long as she

“diligently applied” herself to her studies, was obligated to

continue      paying      the     daughter’s     educational          expenses,

notwithstanding     the   daughter’s    poor   academic       performance      and

placement on academic probation).

                            C. Attorneys’ Fees

       Plaintiff further contends that the trial court erred in

ordering him to pay Defendant’s attorneys’ fees.               We agree.

       We review the trial court’s award of attorneys’ fees for

abuse of discretion.           Runnels v. Robinson, 212 N.C. App. 198,
                                           -10-
203,   711     S.E.2d    486,    490-91      (2011).         “Abuse    of    discretion

results where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result

of a reasoned decision.”              State v. Hennis, 323 N.C. 279, 285,

372 S.E.2d 523, 527 (1988).             “The general rule in North Carolina

is that attorney’s fees are not allowed as a part of the costs

in civil actions or special proceedings, unless there is express

statutory      authority     for      fixing      and   awarding      the    attorney’s

fees.”    Alston v. Fed. Exp. Corp., 200 N.C. App. 420, 424, 684

S.E.2d 705, 707 (2009) (citing Bowman v. Comfort Chair Co., 271

N.C. 702, 704, 157 S.E.2d 378, 379 (1967)).

       Here,    the     trial      court     concludes       in     its     order     that

“Defendant      is    the   prevailing       party      in   this     action    and    is

entitled to a judgment for her attorney fees and expenses.                             The

attorney fees and expenses incurred by Defendant in the amount

of $5020.00 are reasonable, entitling Defendant to a judgment

for that amount.”           The order, however, does not articulate any

basis, statutory or otherwise, for the attorneys’ fees award.

       Defendant has not advanced any statutory authority, before

the trial court or now on appeal, in support of her request for

attorneys’      fees.       Rather,      Defendant’s         sole    contention       with

respect   to    the     merits   of    the     attorneys’     fees    award    is   that
                                      -11-
“[t]his current proceeding is no different substantively from

the    previous      proceeding   between     the    parties       heard     by   Judge

Brantley in April 2005 in which attorney fees were awarded to

Defendant.”        Defendant insists that because the same judge has

previously awarded her attorneys’ fees in a separate proceeding

brought      under    the    Separation     Agreement       and    because    “[b]oth

proceedings concerned Plaintiff’s failure to pay certain amounts

he contractually agreed to pay and/or was required by court

order to pay[,]” she must likewise be entitled to attorneys’

fees    in   the     present    action.       We    disagree       that    these    two

proceedings are substantively the same; whereas the April 2005

order     addressed     Plaintiff’s        “clear    and     unequivocal”          child

support obligation under the Separation Agreement, the present

matter    involves     Plaintiff’s    obligation       to    pay    the    children’s

college expenses under a provision of the Separation Agreement

that fails to define the scope of that obligation.                    Moreover, we

fail to see how the April 2005 attorneys’ fees award, which

evidently     was    never     subjected    to     appellate      review,    has    any

bearing on the propriety of the attorneys’ fees award presently

under review.        We also note that the April 2005 attorneys’ fees

award was based upon the trial court’s determination that the

action was non-justiciable, and the trial court made no similar
                                 -12-
determination in support of the attorneys’ fees awarded here.

Accordingly, because the record is devoid of any basis for an

award of attorneys’ fees, and because Defendant has advanced no

authority in support of such an award, we vacate that portion of

the trial court’s order.

                            III. Conclusion

    For   the   foregoing   reasons,    we   vacate   the   trial   court’s

award of attorneys’ fees, but affirm the trial court’s 7 March

2013 judgment and order in all other respects.

    AFFIRMED IN PART; VACATED IN PART.

    Judges STROUD and HUNTER, JR. concur.

    Report per Rule 30(e).
