In Re Marriage of Smith & Maescher

Donald Maescher appeals an order requiring him to reimburse his former wife, Daphne Smith, for education expenses she advanced to their son Peter for his senior year of college. He contends their marital separation agreement defining his obligation to pay college expenses created a third party beneficiary contract for the breach of which only Peter could recover damages. He also contends he and Peter orally modified his obligation to pay college expenses, so he is not liable for their payment. Finally, he asserts the court erred in awarding Smith $1,000 in attorney fees. Because we conclude the law of third party beneficiary contracts gives a promisee only a remedy of specific performance and, at best, nominal damages in a case such as this involving a donee beneficiary, the court erred in awarding Smith the moneys voluntarily loaned Peter. As a result, it also erred in awarding attorney fees to Smith.

Smith cross-appeals the order to the extent it denied her claim for child support payments for Peter and their other son, Christopher, during the periods they were over age 18 and attending college. Since we conclude substantial evidence supports the court’s implicit…