College Expense Issues in Domestic Relations Cases

Believe it or not, not all states allow a court to order divorcing parents to contribute to college expenses. For example, in New Hampshire, the law prohibits orders for college contributions, and in In re Goulart, 965 A.2d 1068 (N.H. 2009) that law prevented enforcement of even the parents' agreement to contribute to college.

In Walters v. Walters, 901 N.E.2d 508 (Ind. Ct. App. 2009), when a trial court modified the mother's child support obligation because she had obtained employment, it was held to be error not to modify similarly the college provision of the settlement agreement that had originally obligated the father to pay all college expenses. The parties' agreement was held not to be binding because college expenses are in the nature of child support and can always be modified.

In Bogannam v. Bogannam, 877 N.Y.S.2d 336 (App. Div. 2009) the father was ordered to pay the daughter's college expenses. Because at the time of the divorce she was only seven, the order was reversed and it was held that the obligation was premature.

Other states have considered the issue. See also Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989) (contribution permitted). See Childers v. Childers, 575 P.2d 201 (Wash. 1978) (contribution permitted). See also Grapin v. Grapin, 450 So.2d 853 (Fla. 1984) (contribution not permitted).

The Missouri statute according to Lieberman v. Lieberman, 517 S.W.2d 478 (Mo. Ct. App. 1974) states that special circumstances must exist before college expenses can be ordered. In that case, the son sued his father, and the court had previously ruled that he could proceed in his own right. However, his pleading was held not to state a claim upon which relief can be granted, apparently because there were no special circumstances such as where the adult child is incapable of supporting himself due to physical or mental infirmity. It was held that the duty on the parent to provide post-majority support arises not from the nature of the support or the benefits sought, but from the condition of the child seeking the benefit.

Is It Constitutional?

The question or comment most often heard from divorcing fathers is, “How can I be ordered to pay for college when my neighbor, who is staying married, can refuse to pay for his kid's college and no court can touch him?” In their own way, they are raising an equal protection argument. And in fact, this argument has been raised in a number of states, with mixed results.

Recently, the Supreme Court of South Carolina decided a constitutional college-related issue in Webb v. Sowell, 692 S.E.2d 543 (S.C. 2010). In that case, it was found that South Carolina's statute requiring parents to pay for college education violated the equal protection clause. In other states, such as Illinois, the statute had survived such a challenge. Kujawinski v. Kujawinski, 376 N.E.2d 1382 (Ill. 1978). See also In re Marriage of Crocker, 22 P.3d 759 (Ore. 2001) (constitutional); Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (unconstitutional); Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989) (statute ruled constitutional); In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980) (constitutional, stating that, “even well-intentional parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.”); Childers v. Childers, 575 P.2d 201 (Wash. 1978) (statute ruled constitutional).

Particular Issues

Often, there is controversy regarding whether a court should order contribution based on private or state schools. In In re Marriage of Schmidt, 292 Ill.App.3d 229, 684 N.E.2d 1355 (Ill.App.Ct. 1997), in his response to the Petition For Contribution, the husband asked the court to determine a reasonable amount for his contribution, which is a question of fact. On the state versus private school issue, the court stated, “another factor to be considered is whether there are special programs or attributes of a school that would make the additional costs of a private school more reasonable under the circumstances.” 684 N.E.2d at 1362. In Schmidt, the daughter provided scant evidence of that. Further, the child's testimony in that case did not provide any meaningful reasons for her choice of a private school over the state schools. Moreover, she had been accepted to the state schools.

However, Illinois courts do not generally require a child to go to public school as opposed to private school. “The Illinois courts are generally less concerned with the type of school than with the overall cost of attendance. In making the determination with regard to whether or not the cost of school tuition is reasonable, the court will consider the parents' ability to pay for their child's college expenses.” In re Marriage of Street, 325 Ill.App.3d 108, 756 N.E.2d 887, 893 (Ill.Ct.App. 2001).

Times of emancipation can also be litigated. In an unusual fact situation, early in 2010, the Supreme Court of Illinois in In re Marriage of Baumgartner, 930 N.E.2d 1024 (Ill. 2010), held that incarceration of a 20-year-old child for a felony did not terminate the parent's obligation to contribute to his post-secondary education. Rather, incarceration was merely a relevant factor that had to be considered in determining whether the support obligation would terminate.

Procedural Aspects

In re Marriage of Petersen, 932 N.E.2d 1184 (Ill.Ct.App. 2010), a recent case decided in Illinois, turned a procedural aspect of petitioning for college expenses upside-down in that state. In that case, a $200,000 college contribution award was reversed because the petition for college expenses was deemed a modification of child support, and in Illinois, relief could not be granted prior to the time the petition was filed and served. Since the expenses had been paid prior to the filing of the petition, the court was held to have no jurisdiction over those expenses. The court cited and distinguished an earlier case that had indicated the opposite result. It should be noted that at press time, a Petition for Leave to Appeal to the Supreme Court of Illinois was currently pending.

Occasionally, the issue of whether or not the child has standing to pursue an action is litigated. What theory is used can often make a difference. For example, in In re Marriage of Garrison, 425 N.E.2d 518 (Ill.Ct.App. 1981) the parties' son sued under the Illinois statute providing for college expenses. He was held to lack standing to seek enforcement of judgment provisions to which he was not a party. It was stated that there were no allegations that he was a third-party beneficiary of the contract. Conversely, third-party beneficiary status was alleged and was successful in Orr v. Orr, 592 N.E.2d 553 (Ill. Ct.App. 1992).

Is Consultation Required?

Often as a result of a divorce, there is a breakdown in the relationship between the supporting parent and the child. There are many cases where there are consultation requirements that are conditions precedent in the settlement agreement, but even when there are not, local law needs to be consulted on this ever-increasing issue.

One state where this is extremely material is New Jersey, where its Supreme Court held in the case of Gac v. Gac, 897 A.2d 1018 (N.J. 2006), that contribution to college was not required where the child had alienated the non-custodial parent and the non-custodial parent had not been consulted as to the choice of college. One of the 12 factors set forth in the seminal case of Newburgh v. Arrigo, 443 A.2d 1031 (N.J. 1982) is whether the parent in question, if still living with the child, would have contributed to college. This factor weighed against the private college-attending daughter in Gac, since she returned her father's gifts and letters and while age 16 sent him a note saying, “We don't want to hear from you. We don't want anything to do with you.” But the most important factor in this case was the fact that the request came after all the college loans had been incurred. This prohibited the father from being able to participate in the decision, or to plan his financial future. On appeal, the father also raised the equal protection issue discussed elsewhere in this article, but it was deemed waived because it was not raised in the trial court.

More Federal Law Issues

An appellate court in Illinois recently decided the case of In re Marriage of Truhlar, 2010 WL 3667117 (Ill. Ct. App. 2010). In that case, portions of the Social Security Act were interpreted. The father had Social Security disability income and the appellate court held that a college education in proper cases is a necessity for a child and can be grouped with the child's more basic needs like food, shelter and medical care. Therefore, the Social Security disability payments are subject to attachment under federal law.

Conclusion

As can be seen, the state in which you practice will often dictate the extent to which you can successfully prosecute or defend a petition for contribution to college expenses. Nevertheless, you may be able to raise new issues that have not yet been ruled upon where you practice.

Paul L. Feinstein, a Chicago sole practitioner and a member of this newsletter's Board of Editors, concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.

With college expenses going through the roof, divorcing parties are finding it harder to assemble their resources, which are only diminishing in light of the current economy. Statutory and case law throughout the nation should be reviewed to try to solve particular problems because this issue is going to be heavily litigated.

Also, many people thought they had invested sufficiently to take care of college expenses, but diminution in their net worth in this economy has required reassessment of these plans. Moreover, those who entered into agreements some time ago, figuring they would be able to pay for college through employment, perhaps can no longer afford to do so. As a result, a variety of procedural and substantive issues may arise in these cases. A review of the some of the case law in various states can be instructive.

Is It Permitted?

Believe it or not, not all states allow a court to order divorcing parents to contribute to college expenses. For example, in New Hampshire, the law prohibits orders for college contributions, and in In re Goulart, 965 A.2d 1068 (N.H. 2009) that law prevented enforcement of even the parents' agreement to contribute to college.

In Walters v. Walters , 901 N.E.2d 508 (Ind. Ct. App. 2009), when a trial court modified the mother's child support obligation because she had obtained employment, it was held to be error not to modify similarly the college provision of the settlement agreement that had originally obligated the father to pay all college expenses. The parties' agreement was held not to be binding because college expenses are in the nature of child support and can always be modified.

In Bogannam v. Bogannam , 877 N.Y.S.2d 336 (App. Div. 2009) the father was ordered to pay the daughter's college expenses. Because at the time of the divorce she was only seven, the order was reversed and it was held that the obligation was premature.

Other states have considered the issue. See also Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989) (contribution permitted). See Childers v. Childers , 575 P.2d 201 (Wash. 1978) (contribution permitted). See also Grapin v. Grapin , 450 So.2d 853 (Fla. 1984) (contribution not permitted).

The Missouri statute according to Lieberman v. Lieberman , 517 S.W.2d 478 (Mo. Ct. App. 1974) states that special circumstances must exist before college expenses can be ordered. In that case, the son sued his father, and the court had previously ruled that he could proceed in his own right. However, his pleading was held not to state a claim upon which relief can be granted, apparently because there were no special circumstances such as where the adult child is incapable of supporting himself due to physical or mental infirmity. It was held that the duty on the parent to provide post-majority support arises not from the nature of the support or the benefits sought, but from the condition of the child seeking the benefit.

Is It Constitutional?

The question or comment most often heard from divorcing fathers is, “How can I be ordered to pay for college when my neighbor, who is staying married, can refuse to pay for his kid's college and no court can touch him?” In their own way, they are raising an equal protection argument. And in fact, this argument has been raised in a number of states, with mixed results.

Recently, the Supreme Court of South Carolina decided a constitutional college-related issue in Webb v. Sowell , 692 S.E.2d 543 (S.C. 2010). In that case, it was found that South Carolina's statute requiring parents to pay for college education violated the equal protection clause. In other states, such as Illinois, the statute had survived such a challenge. Kujawinski v. Kujawinski , 376 N.E.2d 1382 (Ill. 1978). See also In re Marriage of Crocker, 22 P.3d 759 (Ore. 2001) (constitutional); Curtis v. Kline , 666 A.2d 265 (Pa. 1995) (unconstitutional); Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989) (statute ruled constitutional); In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980) (constitutional, stating that, “even well-intentional parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.”); Childers v. Childers , 575 P.2d 201 (Wash. 1978) (statute ruled constitutional).

Particular Issues

Often, there is controversy regarding whether a court should order contribution based on private or state schools. In In re Marriage of Schmidt, 292 Ill.App.3d 229, 684 N.E.2d 1355 (Ill.App.Ct. 1997), in his response to the Petition For Contribution, the husband asked the court to determine a reasonable amount for his contribution, which is a question of fact. On the state versus private school issue, the court stated, “another factor to be considered is whether there are special programs or attributes of a school that would make the additional costs of a private school more reasonable under the circumstances.” 684 N.E.2d at 1362. In Schmidt, the daughter provided scant evidence of that. Further, the child's testimony in that case did not provide any meaningful reasons for her choice of a private school over the state schools. Moreover, she had been accepted to the state schools.

However, Illinois courts do not generally require a child to go to public school as opposed to private school. “The Illinois courts are generally less concerned with the type of school than with the overall cost of attendance. In making the determination with regard to whether or not the cost of school tuition is reasonable, the court will consider the parents' ability to pay for their child's college expenses.” In re Marriage of Street, 325 Ill.App.3d 108, 756 N.E.2d 887, 893 (Ill.Ct.App. 2001).

Times of emancipation can also be litigated. In an unusual fact situation, early in 2010, the Supreme Court of Illinois in In re Marriage of Baumgartner, 930 N.E.2d 1024 (Ill. 2010), held that incarceration of a 20-year-old child for a felony did not terminate the parent's obligation to contribute to his post-secondary education. Rather, incarceration was merely a relevant factor that had to be considered in determining whether the support obligation would terminate.

Procedural Aspects

In re Marriage of Petersen, 932 N.E.2d 1184 (Ill.Ct.App. 2010), a recent case decided in Illinois, turned a procedural aspect of petitioning for college expenses upside-down in that state. In that case, a $200,000 college contribution award was reversed because the petition for college expenses was deemed a modification of child support, and in Illinois, relief could not be granted prior to the time the petition was filed and served. Since the expenses had been paid prior to the filing of the petition, the court was held to have no jurisdiction over those expenses. The court cited and distinguished an earlier case that had indicated the opposite result. It should be noted that at press time, a Petition for Leave to Appeal to the Supreme Court of Illinois was currently pending.

Occasionally, the issue of whether or not the child has standing to pursue an action is litigated. What theory is used can often make a difference. For example, in In re Marriage of Garrison, 425 N.E.2d 518 (Ill.Ct.App. 1981) the parties' son sued under the Illinois statute providing for college expenses. He was held to lack standing to seek enforcement of judgment provisions to which he was not a party. It was stated that there were no allegations that he was a third-party beneficiary of the contract. Conversely, third-party beneficiary status was alleged and was successful in Orr v. Orr , 592 N.E.2d 553 (Ill. Ct.App. 1992).

Is Consultation Required?

Often as a result of a divorce, there is a breakdown in the relationship between the supporting parent and the child. There are many cases where there are consultation requirements that are conditions precedent in the settlement agreement, but even when there are not, local law needs to be consulted on this ever-increasing issue.

One state where this is extremely material is New Jersey, where its Supreme Court held in the case of Gac v. Gac , 897 A.2d 1018 (N.J. 2006), that contribution to college was not required where the child had alienated the non-custodial parent and the non-custodial parent had not been consulted as to the choice of college. One of the 12 factors set forth in the seminal case of Newburgh v. Arrigo , 443 A.2d 1031 (N.J. 1982) is whether the parent in question, if still living with the child, would have contributed to college. This factor weighed against the private college-attending daughter in Gac, since she returned her father's gifts and letters and while age 16 sent him a note saying, “We don't want to hear from you. We don't want anything to do with you.” But the most important factor in this case was the fact that the request came after all the college loans had been incurred. This prohibited the father from being able to participate in the decision, or to plan his financial future. On appeal, the father also raised the equal protection issue discussed elsewhere in this article, but it was deemed waived because it was not raised in the trial court.

More Federal Law Issues

An appellate court in Illinois recently decided the case of In re Marriage of Truhlar, 2010 WL 3667117 (Ill. Ct. App. 2010). In that case, portions of the Social Security Act were interpreted. The father had Social Security disability income and the appellate court held that a college education in proper cases is a necessity for a child and can be grouped with the child's more basic needs like food, shelter and medical care. Therefore, the Social Security disability payments are subject to attachment under federal law.

Conclusion

As can be seen, the state in which you practice will often dictate the extent to which you can successfully prosecute or defend a petition for contribution to college expenses. Nevertheless, you may be able to raise new issues that have not yet been ruled upon where you practice.

Paul L. Feinstein, a Chicago sole practitioner and a member of this newsletter's Board of Editors, concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.