Child Support and Private School Tuition
January 12, 2017 § 2 Comments
John (Jack) and Lori Bell were divorced in 2010. Their irreconcilable differences divorce judgment incorporated a PSA that included the following language:
As child support, Husband … shall pay $1,700 per month … which he shall pay … until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. The child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereafter.
The $1,700 agreed monthly child support exceeded the statutory child support guidelines.
The student loan is referenced in a subsequent paragraph, which explains that its proceeds were used in part to finance the household while the wife completed her degree at an Oklahoma law school.
In 2014, Jack filed for modification of child support based on the fact that he was laid off from his employment as a mechanical engineer and had to take a job in his mother’s country store, which later went out of business. His monthly income dropped from $3,077 at the time of the divorce to zero after the store closed. Jack had unilaterally reduced his child support to $625 a month based on his unemployment; he paid much of his arrearage after his mother’s store was sold. At the time the matter came on for hearing, Jack reported income of $2,575.35 a month.
Following a hearing, the special chancellor found Jack in contempt and ordered him to make certain remedial payments. The judge also found that there had been a material change in circumstances and reduced Jack’s child-support obligation to $865 per month, which was comprised of $365 in child support based on AGI, and an additional $500 in private school tuition. The chancellor explained that the private-school tuition was a deviation from the statutory guidelines, but was warranted based on his agreement to pay it in the PSA. Also, based on the modification, the judge ordered Jack to pay Lori a part of the balance due on the student loans.
Jack appealed, pointing out that the judge’s ruling resulted in his payment of child support greatly in excess of the guidelines. In the case of Bell v. Bell, handed down December 6, 2016, the COA affirmed on the point. Judge Barnes wrote for the majority:
¶9. Jack complains that the $500 per month in private-school tuition made his child-support obligation greater than 33.5% of his adjusted gross income, and with all support-related costs for Kinsley, his obligation was over 51% of his adjusted gross income. Moreover, he claims the finding by the chancellor at the modification hearing regarding the statutory deviation was insufficient. We disagree.
¶10. The chancellor found a material change in circumstance and granted Jack’s request for a downward modification in child support and other financial obligations. Jack’s payment decreased from $1,700 per month to $1,000 per month – both figures including consideration for student-loan debt as well as child support. [Fn omitted] The child-support figure of $865 constituted $365 in statutory child support (14% of his adjusted gross income of $2,575.35) [Fn omitted] and $500 for private-school tuition at Pillow Academy – the cost of tuition for one month.
¶11. There was no specific explanation in the agreement itself regarding what comprised the $1,700, but the parties explained their original and current intentions at the modification hearing. The original custody, support, and property-settlement agreement, signed by both parties, stated:
As child support, Husband . . . shall pay $1,700 per month, as child support, following the entry of divorce which he shall pay . . . thereafter until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. This child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereinafter.
Another provision in the agreement that related to how the parties arrived at the child-support figure was related to the student-loan debts:
Wife shall pay the following debts: all debts in her name alone including the $130,000 student loan. It is agreed that this student loan was used by both Husband and Wife for their college educations, and that Wife is agreeing to be responsible for paying all of it in consideration of Husband paying her the child support set out in paragraph 3 above.
At the modification hearing during examination by Lori’s counsel, Jack responded affirmatively that the two of them agreed to all of the terms and provisions of the agreement, waited sixty days, and were granted a divorce, and that Jack agreed to pay $1,700 per month in child support under the agreement. Jack further stated during questioning that they came up with the $1,700 figure “because of her student loans and everything else.” He admitted Pillow Academy tuition was also factored into the figure, which was approximately $450 to $500 per month at the time. Jack stated Kinsley had gone to Pillow Academy since “day one,” or six years at that time, and he wanted her to continue attending the school. Regarding the student loans, Jack admitted the $130,000 was “more than just a student loan”; it included some of their joint living expenses while Lori received her law degree from the University of Tulsa. Jack affirmed that he told the chancellor during the divorce
proceedings that he could comply with all of the obligations of the agreement, including the $1,700 in child support.
¶12. As Lori points out, chancellors are not required to make specific findings of fact supporting upward deviations in child support when the parties have previously, knowingly, and willfully obligated themselves to pay more than the guidelines require, such as through
a valid agreement. See Stigler v. Stigler, 48 So. 3d 547, 555 (¶29) (Miss. Ct. App. 2010). In divorce agreements, “parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Id. at 551 (¶9) (quoting Rogers v. Rogers, 919 So. 2d 184, 189 (¶19) (Miss. Ct. App. 2005)). Unlike Stigler, however, here the modification was not upward, and as Jack states, the parties did not agree to the terms of the modification. Stigler did not involve a child-support modification, but the initial agreement. Lori also cites to Short, 131 So. 3d at 1152 (¶10), where the supreme court denied downwardly modifying the husband’s child support obligation and enforced the original agreement because, while the obligation was “indeed high, [the husband] freely consented” to provide more support than the statutory guidelines recommended.
¶13. Jack cites to Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶9) (Miss. 2002), Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004), and Kilgore v. Fuller, 741 So. 2d 351, 354 (¶11) (Miss. Ct. App. 1999), for the proposition that private-school tuition is an ordinary expense to be included in the statutory amount of child support, and not to be calculated separately or in addition to the support award. Further, if an award exceeds the presumptive amount of the guidelines, the chancellor must make a specific finding as to why it is just or appropriate. However, neither Southerland nor Moses involved a modification award, and Kilgore was an increase in child support, not a decrease.
¶14. While all of the authority cited by the parties is somewhat distinguishable, we find the chancellor made a sufficient finding at the modification hearing that Jack must continue to pay private-school tuition. The finding was based upon Jack and Lori’s detailed testimony that Jack wanted Kinsley to continue her education at Pillow Academy, where she had been for six years. We do not agree with Jack that the sole basis of the chancellor’s ruling was the prior agreement. The chancellor took into account what the parties had agreed to before, as well as the way they had raised and educated the child since the divorce. The chancellor was able both to downwardly-modify Jack’s child support nearly by half, and
provide for private-school tuition within the obligation. We find no error with the modification.
¶15. The chancellor provided a sufficient explanation to deviate from the statutory guidelines of child support and include private-school tuition. This issue is without merit.
As with all child support cases, this one has a thicket of facts that significantly impacts the final outcome. The payment of private school tuition was linked to the student loans, which in turn affected the other amounts agreed to be paid, as well as the initial agreement to exceed the guidelines.
There is no discussion of the parties’ agreement in the PSA that the child support would not be modifiable so long as Lori paid the student loans. I don’t think such an agreement is binding on the court in a subsequent modification action. In East v. East, 493 So.2d 927 (Miss. 1986), the MSSC laid down the principle that the parties may not agree that periodic alimony may not later be modified*, and I see no reason why the same should not be even more applicable in child-support cases where the best interest of the child trumps every other consideration. The case of Tedford v. Dempsey, 437 So.2d 410, 418 (Miss. 1983) lends some weight to the argument. There may be a case directly on point. If you have a cite you can share it in a comment.
* This holding may have been impacted, more or less, by cases upholding so-called “hybrid” forms of alimony.
What you can take away is that child-support modification is not only fact-intensive, but its outcome is also largely shaped by the agreement or judgment that is sought to be modified.