Laurence H. Eldredge, Philadelphia, Pa., and Daniel L. Herrmann, of Herrmann, Bayard, Brill & Gallagher, Wilmington, for Deborah Eldredge duPont in both actions.
[40 Del.Ch. 291] William S. Potter and James L. Latchum, of Berl, Potter & Anderson, Wilmington, for William Henry dePont in both actions.
The court is concerned with two actions. One is an action by Deborah Eldredge duPont ('Deborah') seeking specific performance of Paragraph 3(c)(1) of a Separation Agreement with her former husband William Henry duPont ('Henry'). She contends that he refuses 'to pay tuition costs and educational costs' for each child of the parties while in private schools, even though this paragraph so provides.
The second action is brought by Henry against Deborah seeking specific performance of the so-called arbitration provision of the Separation Agreement. Henry contends that the operation of the provision of the Separation Agreement dealing with payment of the educational expenses of the children is subject to arbitration where, as here, there is a dispute between Deborah and him concerning such matters.
The arguments of the parties have wandered into many areas not directly involved in resolving the issues presented in these cases. As I view it, the language of the Separation Agreement, when read in the light of undisputed surrounding circumstances, provides the answers to the present controversy. Paragraph 2 of the Separation Agreement gives the wife custody and control of the children subject to certain visitation rights in Henry. This paragraph also provides that 'The parties shall confer with each other regarding the choice of schools, vacations, summer camps, tuition
and education costs for the children and if they cannot agree the matter will be decided by arbitration under the terms of Paragraph 22 hereof'.
Paragraph 3 then provides that, subject to the provisions of Paragraph 4, Henry (a) agrees to pay to Deborah, subject to limitations not now pertinent, $5,000 annually, (b) agrees to pay to Deborah for the support and maintenance of each child, with limitations not now pertinent, 'a sum of money annually which, when added to any and all other amounts or property available for the support and maintenance of such Child, other than such Child's own earnings, shall equal the sum of Four Thousand ($4,000) Dollars per annum. Subparagraph (c) then provides as follows:
[40 Del.Ch. 292] '(c) In addition to the foregoing payments to be made by the Husband to the Wife as provided in Paragraphs 3(a) and 3(b) above, and for the applicable periods as limited above, the Husband agrees to pay: (1) tuition costs and other education costs for each Child; (2) the reasonable expense of summer camp or vacation for each Child until said Child shall attain the age of twenty-one years; and (3) medical, dental, surgical, hospital and nursing expenses incurred in excess of Three Hundred Fifty ($350) Dollars in any year for the Wife and Children. Before incurring such expenses, however, the Wife shall consult with the Husband if there is reasonable opportunity to do so.'
I should add that Paragraph 4 is not entirely clear but it provides in effect that there is a ceiling on the payments provided for in Paragraph 3(a) and (b), which ceiling is predicated on a formula which I need not now consider. It does not apply to 3(c).
Paragraph 22, insofar as pertinent, provides as follows: 'Any dispute between the parties arising out of or in connection with the terms of this Agreement regarding visitation rights, the selection of schools, or the costs and expenses referred to in Paragraph 3(c) hereof, only shall be arbitrated.'
Henry first seems to argue that Deborah failed to consult with him about the schools and tuition costs for the current school year. Actually the Agreement did not become effective until after the commencement of the current school year. When it became effective on October 20, 1961, it was retroactive to October 1, 1960. Thus, as a practical matter, the 'consultation' provision could not have been applied to the present school year. It may be noted that on September 11, 1961, Deborah's counsel did notify Henry's counsel that the children were enrolled in the schools they had been attending. So far as I can ascertain, Henry did not request arbitration until January 19, 1962. The Agreement does not provide mechanics for implementing its 'consultation' provisions. Certainly Henry could not wait until January to raise questions which should have been resolved at or before the commencement of the school year. I would think the parties might want to execute a supplement to the Agreement incorporating mechanics for implementing this and similar provisions.
[40 Del.Ch. 293] Thus, I conclude that the expenses incurred for the current year are not now arbitrable. They must be paid by Henry under my later construction of this Agreement.
Henry next appears to say that the payments provided for by Paragraph 3(c) are covered by the payments made by Paragraph 3(b). I cannot follow this argument. The language of Paragraph 3(c) to the effect that the payments therein provided should be 'in addition to' the payments made under Paragraph 3(a) and (b) is so clear that the subject is not an arguable one. Contrary to Henry's contention, we are not concerned with an issue as to whether the ...