High Income and College Support
February 24, 2020 § 3 Comments
In the COA case, Descher v. Descher, rendered January 14, 2020, the court considered Jeffrey Descher’s argument that the chancellor had erred in ordering him to pay college support for his two children. Judge Lawrence wrote the 7-2 affirming opinion (Tindell not participating) on the issue:
¶15. Jeff next argues that it was manifest error to require him to be obligated for all of the children’s college tuition and related expenses. The chancellor’s judgment stated in part:
Jeff shall be responsible for the reasonable cost and expense of both [the children’s] college or university education, to include tuition, room and board, meals, laboratory fees, books, sorority or fraternity dues and expenses, automobile expenses, and any other cost generally associated with attendance at a four-year public or private college or university, either in-state or out-of-state. . . .
Jeff believes that this exposes him to an endless list of expenses that are unforeseeable. Additionally, Jeff argues the chancellor erred and failed to consider a reduction of his child support obligation once the children enter college.
¶16. The Mississippi Supreme Court has held that the chancery court may require a parent to pay for college tuition and expenses “when a [parent’s] financial ability is ample to provide a college education and the child shows an aptitude for such. . . .” A.M.L. v. J.W.L., 98 So. 3d 1001, 1020 (¶54) (Miss. 2012) (quoting Saliba v. Saliba, 753 So. 2d 1095, 1101 (¶21) (Miss. 2000)). This authority, however, is not absolute and should be taken on a case by-case basis “dependent upon the proof and circumstances [presented].” Saliba, 753 So. 2d at 1102 (¶24).
¶17. Jeff first claims that because the chancellor failed to set a dollar amount on the award of college support and because the judgment did not require that the children attend an in-state college or university, he is open to insurmountable costs that the chancellor could not properly consider at the time of the trial. Jeff cites the supreme court’s holding in A.M.L. and claims that the law requires the chancellor make what Jeff describes as “specific findings on the record to support an award for expenses.” In A.M.L., however, the supreme court remanded the case for the chancellor to make a specific determination of what college expenses were required only because the chancellor had noted in her order that “[a]ll other aspects of the college expenses as set out in the original [Agreement] shall remain in full force and effect.” A.M.L., 98 So. 3d at 1021 (¶¶57-58). In this case, the chancellor was specific as to the exact expenses that Jeff was required to fulfill. Further, Jeff acknowledged that he had already created trust funds for the children’s college education.
¶18. More in line with the facts of this case is the holding in Saliba v. Saliba, in which the supreme court determined that a father was required to pay for college expenses for his daughter even if the child chose an out-of-state college or university. Saliba, 753 So. 2d at 1103 (¶27). The court noted that when a parent is financially able, a child “is entitled to attend college in accord with [the child’s] family standards.” Id. at 1102 (¶27) (emphasis omitted) (quoting without reference Rankin v. Bobo, 410 So. 2d 1326, 1329 (Miss. 1982)) (citing Wray v. Langston, 380 So. 2d 1262 (Miss. 1980)). The Mississippi Supreme Court reasoned that David Saliba was wealthy and able to provide a college education to any institution his daughter chose. Id. at 1103 (¶27). Specifically, the supreme court stated that “[the father] is able and should be required to contribute to the college education at an institution of his daughter’s choice, commensurate with her parents’ station in life.” Id. Based on the record before this Court, Jeff is more than able to provide his children with collegiate education “commensurate with [their] parents’ station in life” and, in fact, has
already set up and partially funded college-expense trust funds for the children.
¶19. While Jeff argues that the chancellor failed to make a detailed finding regarding whether the college-expense support obligation minimizes his child support obligation, the laws of this State say differently: “payments toward education are seldom used to offset child support ‘as they do not diminish the child’s need for food, clothing and shelter.’” Weeks v. Weeks, 29 So. 3d 80, 88 (¶34) (Miss. Ct. App. 2009) (quoting Fancher v. Pell, 831 So. 2d 1137, 1142 (¶23) (Miss. 2002)). There is no guarantee that the children will not live with April during the summer or at any other time when their respective universities are closed for the holidays, meaning that April will need to provide food and maintain the home, among
¶20. Jeff preemptively argues for a modification of his child support obligation before the children are of the age to go to college. “To obtain a modification in child support payments, there must be a ‘substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.’” McEwen v. McEwen, 631 So. 2d 821, 823 (Miss. 1994) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). Jeff earns $71,377.67 per month after taxes and now owns either a half or full interest (without a split for the marital estate) in thirteen McDonald’s restaurants, an apartment complex, a car wash, and an office complex; he is certainly capable of paying future college expenses without causing a financial hardship. Jeff has also added a new McDonald’s restaurant to his portfolio since April filed for divorce. The record is silent as to any material change that Jeff may have suffered at this point or how the payments of college expenses would be a financial hardship on Jeff, especially considering that the children had college-expense trust funds established before the divorce. Therefore, the chancellor did not commit manifest error in obligating Jeff to pay for his children’s college expenses.