                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-CA-01462-SCT
REED RICKMAN MOTTLEY
v.
REBECCA COCHRAN MOTTLEY

DATE OF JUDGMENT:                                10/08/97
TRIAL JUDGE:                                     HON. JAMES H. C. THOMAS, JR.
COURT FROM WHICH APPEALED:                       FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                          KIM T. CHAZE
ATTORNEY FOR APPELLEE:                           ERIK M. LOWREY
NATURE OF THE CASE:                              CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                     AFFIRMED - 1/28/99
MOTION FOR REHEARING FILED:                      2/10/99
MANDATE ISSUED:                                  4/15/99




     BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:




                                    STATEMENT OF THE CASE

¶1. This case deals with the interpretation of a property settlement and child custody agreement. Dr. Reed
Rickman Mottley claims that he is not responsible for payment of half of his son's educational expenses
since his son has attained the age of 21. On October 8, 1997, the Forrest County Chancery Court found
Dr. Mottley in contempt and awarded Ms. Rebecca Mottley, his former spouse, $3,555.06 in educational
expenses for Brent Douglas Mottley and $1000 in attorney's fees. Dr. Mottley appeals from this judgment
and assigns the following as error:

     WHETHER DR. MOTTLEY SHOULD HAVE BEEN ORDERED TO PAY THE
     COLLEGE EXPENSES OF HIS TWENTY-FOUR YEAR OLD CHILD.

                                             DISCUSSION

¶2. Dr. Motley asserts he should not be obligated to pay half his son's college expenses since his son has
attained the age of 21. Brent Douglas Mottley is now 24. Ms. Mottley submits that Dr. Mottley is
responsible for half of Brent's education expenses due to their property settlement agreement dated August
28, 1985. The property settlement agreement states in pertinent part:

     SEVENTH: Dr. Reed Rickman Mottley agrees that he will pay all educational expenses of Emily
     Renee Mottley and McCabe Toler Mottley and one-half of all educational expenses for Brent
     Douglas Mottley, subject to Paragraph Eleventh hereof. The parties acknowledge that if Dr. Reed
     Rickman Mottley remains employed at the University of Southern Mississippi, most of the tuition
     costs for the children would be automatically paid; but the parties agree that they shall not induce their
     children to attend the University of Southern Mississippi, but will each encourage their children to
     seek higher education in an appropriate institution best suited to their life goals.

¶3. Paragraph eleven simply states the parties will decide whether Brent should continue in private school.
The main point of contention is the absence of specific language in the agreement as to post-emancipation
payments. Dr. Mottley argues this agreement must be read in accord with our case law to limit his payments
to the period prior to each of the children reaching age 21. Ms. Mottley asserts Dr. Mottley agreed to
support the children throughout their college tenure. She suggests that if Dr. Mottley wants to change the
terms, he should seek a modification.

¶4. We have previously upheld a chancellor's decision requiring the father to continue to pay for his child's
education past the child's twenty-first birthday. See Hoar v. Hoar, 404 So. 2d 1032 (Miss. 1981); Crow
v. Crow, 622 So. 2d 1227 (Miss. 1993). In Hoar, the chancellor found a provision in the settlement
agreement was ambiguous and questioned the parties to clear up any ambiguity. Id. at 1035. We affirmed
the chancellor's interpretation of the agreement. Id. The property settlement agreement in Hoar contained
the following language:

     (f) As to either son, Husband's obligations for support and college assistance shall terminate upon the
     earliest of any of the following events:

     1. Death of the child;

     2. Marriage of the child;

     3. Completion of High School or the attainment of the age 18 with the permanent intent not to
     complete college;

     4. Suspension of college education for any reason other than illness for more than a three-month
     period (the normal summer period being between regular semesters);

     5. Completion of college or the normal four-year undergraduate course;

     6. Four years past High School graduation.

Id. at 1034-35. It is clear from the language in Hoar that there was an agreement to provide for the child
post-emancipation.

¶5. The instant case is not so clear. The property settlement agreement simply states that Dr. Mottley will
pay one-half of the educational expenses of Brent Douglass Mottley and then discusses possible places
where the children might attend college. The general rule has been that the court cannot order parents to
support their children past the age of twenty-one. Nichols v. Tedder, 547 So.2d 766, 770 (Miss. 1989).
However, this holding was qualified by the following: "Of course, nothing we have said should be
interpreted as foreclosing the enforceability of agreements by the parties providing for the post-
emancipation care and maintenance of their children, whether those agreements are separate contracts, or
have been incorporated into the divorce decree." Id.

¶6. Dr. Mottley cites the Nichols decision for authority that the parties must specifically contract to provide
support for children past the age of twenty-one. Ms. Mottley notes that in Hoar we upheld the chancellor's
decision where there was ambiguous language.

¶7. Crow v. Crow, cited above is analogous to this case. In Crow, the father was found in arrears by the
Chancery Court of Alcorn County when he refused to pay college expenses for his daughter who had
recently reached the age of 21. Crow, 622 So. 2d 1227. The father entered into a "Stipulation and
Agreement" specifically contracting to pay the following particular support: ". . . all of the reasonable
expenses of Tina's college education as well as Karen's college education at such time as she entered
college. . . . " Id. at 1230. This support agreement, like the Mottley agreement, was incorporated into the
divorce decree. Id. In Crow, we held the father had contracted to pay post-emancipation support and was
bound by his contract.

¶8. We must dispose of Dr. Mottley's appeal in the same way. He has agreed to pay certain sums in the
"Property Settlement and Child Custody Agreement" he entered with Ms. Mottley. Therefore, the contempt
order of the Forrest County Chancery Court must be affirmed.

¶9. AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., SMITH AND WALLER, JJ., CONCUR. BANKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE AND ROBERTS,
JJ. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS,
J. SULLIVAN, P.J., NOT PARTICIPATING.


      BANKS, JUSTICE, DISSENTING:




¶10. Because I do not agree with the majority's interpretation of the property settlement agreement, I
respectfully dissent.

¶11. In my view, the language of the agreed decree in this case differs from that in Hoar v. Hoar, 404 So.
2d 1032 (Miss. 1981), and Crow v. Crow, 622 So. 2d 1226 (Miss. 1993). Nor is the language amenable
to the interpretation that Dr. Mottley agreed to pay higher education expenses after Brent reached the age
of majority.

McRAE AND ROBERTS, JJ., JOIN THIS OPINION.

      McRAE, JUSTICE, DISSENTING:

¶12. Neither Crow v. Crow, 622 So. 2d 1226 (Miss. 1993) nor Hoar v. Hoar, 404 So. 2d 1032(Miss.
1981) control in this case and thus, the majority has misconstrued the Mottleys' property settlement
agreement. Today's majority opinion appears to adopt the same fallacy apparent in Crow, where this Court
found that the father was bound by his "contract" to provide college expenses beyond the age of twenty-one
for his daughters when he agreed in the separation agreement, which was made part of the final judgment of
divorce, to pay "to the Wife . . . the sum of $600.00 per month for the support of Tina and Karen and all
reasonable college expenses." In that case, I stated:

      That agreement was incorporated into the final judgment of divorce. It is neither a contract nor a
      settlement, but a judgment. As we stated in Brown v. Brown, 566 So. 2d 718 (Miss.1990), a
      judgment for child support included within a divorce decree "is not a settlement of property rights,
      which is immutable, fixed and not subject to change, but a decretal provision based upon the
      reasonable needs of a child coupled with the ability of a parent to pay." Id. at 721; Carpenter v.
      Carpenter, 519 So. 2d 891, 894 (Miss. 1988). Whether the terms of the child support provisions
      are ordered by the court or agreed to by the parties and ratified by the court, they are governed by
      the same rules. Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983). As equity demands, the
      child support provisions agreed to by the parties, are, therefore, subject to modification upon a
      showing of a material change in circumstances not contemplated at the time of the divorce decree.

      A chancellor, however, "has no authority to order child support in any form, whether regular, college
      expenses, or otherwise, to continue in effect post- majority." Stokes v. Maris, 596 So. 2d 879, 882
      (Miss. 1992)(emphasis added); Nichols v. Tedder, 547 So. 2d 766, 768 (Miss. 1989). While an
      agreement between the parties to provide post-emancipation support may be enforceable as between
      the parties, Nichols and its progeny have drawn a clear line of demarcation regarding the
      enforceability of a child support judgment by a chancellor once the child has reached the age of
      twenty-one. 547 So. 2d at 768.

      To perceive as a contract an agreement for child support which has been ratified and made part of a
      divorce judgment is contrary to our established body of family law. It invites application of the strict
      canons of contract interpretation, as opposed to the more flexible principles of child support
      modification, which equitably balance the reasonable needs of the children with the parents' ability to
      provide for them.

Crow, 622 So. 2d at 1232. In this case, as in Crew, the agreement to provide for "all the educational
expenses of Emily Renee Mottley and McCabe Toler Mottley and one-half of all educational expenses for
Brent Douglas Mottley" was part of the Property Settlement and Child Custody Agreement incorporated
into the Divorce Decree.

¶13. Parties are bound by the law in existence at the time a support agreement is entered. Further, it is clear
from the provisions of the agreement and judgment governing the children's support in this case that the
father's legal obligations terminated as each child reached the age of twenty-one. We cannot impose a
higher legal duty upon divorced parents than we do upon those who remain married. To so find does not
impinge upon the father's right to provide further for his son's education out of love, parental concern, or the
mutual respect of parent and child; rather it frees each from the burdens of a duty imposed by law.
Accordingly, I disagree with the majority opinion.

ROBERTS, J., JOINS THIS OPINION.
