The Extracurricular Trap
October 3, 2017 § 3 Comments
Divorcing parents often want to haggle over who will pay for Junior to participate in Youth Soccer Premier League, gymnastics, and all of the other manifold interests and activities that occupy nearly every waking hour of today’s children. When at last the lawyers have gotten their clients to agree, the lawyers without a lot of thought produce a provision like this for the PSA:
The parties agree that they will each pay one-half of the cost for Junior to participate in extracurricular activities.
That thorny issue settled, the lawyers then turn their attention to more substantial matters — like who will get custody of the cocker spaniel.
Now, we know that the parties above want Junior to participate in youth soccer and gymnastics, but is that what they agreed to in that language above?
Before we go on, remember that when you call upon the judge to interpret the parties’ agreement, she is bound by the language contained in its four corners. She may not receive parol evidence to understand what was intended unless she first finds that the language is ambiguous. The language above is heartbreakingly unambiguous. So the parties are stuck with its plain meaning.
And what is its plain meaning?
The COA answered that question in the case of Thomas v. Crews, 203 So.3d 701, 706-7 (Miss. App. 2016). In that case, the chancellor had been called upon to resolve a dispute between the parties over the meaning of the term “extracurricular activities.” Here is what the court said:
¶ 22. The chancellor’s clarification of the term “extracurricular” is also supported by substantial credible evidence in the record. The chancellor clarified that “extracurricular expenses are those incurred through school. … [S]chool volleyball is different than competitive volleyball [.] … [I]f the Father wants to pay, that will be up to the Father.” [Fn 2] At times, Thomas’s hearing testimony made the same distinction that the court’s order does, but, at other times, Thomas’s testimony equated school volleyball and competitive volleyball as “extracurricular.” This confusion justified the chancellor’s clarification.
¶ 23. When first discussing the volleyball teams, Thomas clearly made a distinction between school volleyball as extracurricular and competitive volleyball as different. Thomas referred to “school volleyball” as “the first real extracurricular activity that [Lunden] was interested in.” Thomas then testified that Lunden expressed an interest in competitive volleyball. Detailing Thomas and Crews’s decision to allow Lunden to play competitive volleyball, Thomas testified, “[Crews] and I talked about it and … we agreed that we would split the expenses of the—the training fee and uniforms.” Thomas also made this distinction between the two types of volleyball when discussing Lunden’s volleyball schedule. In contrast, Thomas, on cross-examination, referenced competitive volleyball as an extracurricular activity, stating that Lunden’s “extracurricular activities are expanding. So if she’s playing volleyball in Hot Springs, Arkansas, if you want to see her then that’s where we have to go.” In light of this testimony, the chancellor did not abuse his discretion when he simply “remind[ed] both parties that extracurricular expenses are those incurred through school.”
[Fn 2] Extracurricular is defined as “outside the normal curriculum.” Extracurricular, The Oxford English Dictionary (2d ed. 1989). Extracurricular activities “are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Extracurricular Activities, definitions.uslegal.com/e/extracurricular-activities/.
So, to return to our hapless parties, the shared expenses “are limited to those that are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Not exactly what they intended at the time. At the end of the day, one party leaves happy, the other mad.
If the parties intend to include certain activities, then spell them out. Don’t rely on a catch-all phrase that might have unintended consequences.
The Better Chancery Practice Blog 
Off-topic, but this New Yorker article on guardianships and elder abuse is making the rounds – thought you might be interested.
https://www.newyorker.com/magazine/2017/10/09/how-the-elderly-lose-their-rights
Thank you for sending that. I am on the MSSC’s guardianship commission and have sent the link to Justice Beam, who is chairing it.
“Don’t rely on a catch-all phrase that might have unintended consequences.”
Best statement I’ve read in a long time! Applies to more than just the extracurricular activities issue. Perhaps a law school course in drafting would benefit practioners more than the now too-common write-a-paper seminar course.
As always, thanks judge.