To Defer or Not to Defer

October 20, 2015 § Leave a comment

It sometimes happens that the chancellor chooses not to defer to the findings and recommendations of a guardian ad litem (GAL). When she opts not to defer, how should it be handled in the court’s ruling? That was a question raised in a recent COA case.

Jennifer Lowry and Ryan Simmons were engaged in a child-support dispute in which Ryan claimed that his future college and child-support obligations should be terminated based on his daughter’s refusal to have anything to do with him. Jennifer blamed Ryan for the deterioration of the relationship, and Ryan blamed Jennifer.

The chancellor appointed a GAL to investigate the reasons behind the child’s refusal to visit with her father.

In his report, the GAL found Ryan’s fault greater than the child’s, and recommended modification to reduce Ryan’s college education support obligation conditioned on the child’s participation in counselling to rehabilitate the relationship, and, if the child refused or failed to participate, then complete termination of the obligation.

The chancellor did not follow the recommendation of the GAL, opting instead to terminate the college education obligation completely, based on the child’s lack of effort to reconcile with her father. Jennifer appealed. One of her several grounds for appeal was that the chancellor did not explain his reasons for rejecting the GAL’s recommendations.

In Lowrey v. Simmons, handed down September 29, 2015, the COA found that the chancellor had not erred in how he handled the GAL report. Judge Wilson, for the court, explained:

¶11. Jennifer next argues that the chancellor erred by not following the GAL’s recommendations.1 Jennifer asserts that the chancellor misstated the GAL’s recommendations and erroneously believed that he was following those recommendations. Jennifer further argues that because the chancellor was not following the GAL’s recommendations, he was obligated to explain why he had rejected the them. Jennifer relies on Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007), in support of her argument. In Floyd, the Supreme Court stated, “if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. However, Jennifer fails to note the context of the Court’s statement. The Court wrote:

[A] chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. . . . While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law.

Id. (emphasis added).

¶12. The appointment of a GAL is mandatory where there are allegations of abuse or neglect of a minor or where there is a contested termination of parental rights. See Miss. Code Ann. § 93-5-23 (Supp. 2014); Miss. Code Ann. § 93-15-107(1) (Rev. 2013). Where the appointment of a GAL is discretionary, there is no requirement that the chancellor state his reasons for deviating from the GAL’s recommendations. Porter v. Porter, 23 So. 3d 438, 449 (¶28) (Miss. 2009); Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App. 2007). Moreover, “there is no requirement that the chancellor defer to the findings of the [GAL].” S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000).

¶13. There was no allegation of abuse or neglect in the present case. Nor was this an action to terminate parental rights. Thus, the chancellor was under no obligation to appoint a GAL. Because the chancellor’s appointment of the GAL was discretionary, he was not obligated to detail his reasons for diverting from the GAL’s recommendations. Furthermore, in his order, the chancellor did discuss the recommendations of the GAL. Although the chancellor did not follow the GAL’s recommendations, chancellors are never required to adopt the GAL’s recommendations. Id. (“[T]here is no requirement that the chancellor defer to the findings of the [GAL]. . . . Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).

That does not require any elaboration.

Although she lost on this point, Jennifer prevailed on her argument that the court erred in terminating the college support obligation. That is a subject for another day.

Applying the Post-9/11 GI Bill

October 28, 2013 § Leave a comment

As war drags on in the Far East, there is a growing number of veterans who have earned entitlement to educational benefits under the Post-9/11 Veterans Educational Assistance Act of 2008, known as the “Post-9/11 GI Bill,” codified at 38 USC § 3301, et seq.

The law grants active-duty veterans payment of college tuition, fees, books, and a monthly housing allowance. Those benefits may be transferred to a family member. The law includes the language, however, that:

” … Entitlements transferred … may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 USC § 3319(f)(3).

George Neville and his former wife, Tina Blitz, were confronted with how to divide Post-9/11 benefits in connection with the college education of their daughter, Joyce. George was eligible for Post-9/11benefits, and he decided to transfer them to Joyce.

George wanted Joyce to attend SMU so as to maximize her Post-9/11 benefits. Tina wanted Joyce to attend a state-supported school in Mississippi so as to qualify for in-state tuition. Joyce chose SMU, and she and George agreed that she would bank the $1,200 monthly housing stipend to use after her entitlement to Post-9/11 benefits expired, presumably when she reached age 21. For her share, Joyce began paying the equivalent of the expenses at a state-supported school.

George filed a petition to modify the parties’ divorce judgment. His position at trial was that he wanted Tina to pay all expenses not covered by the GI Bill, which he estimated to be around $19,000 a semester.  

The chancellor modified the judgment to provide that George was entitled to full credit for tuition, fees, and books, but that the $1,200 housing benefit would be taken off the top, and not credited to him. George appealed, complaining that the chancellor’s ruling was a division of benefits contrary to the statute.

In a case of first impression, the MSSC in Neville v. Blitz, rendered September 26, 2013, reversed the trial court’s ruling. The opinion by Justice Coleman, explained:

¶9. We previously have considered distribution of military disability benefits and military retirement pay in domestic relations cases. See Mallard v. Burkart, 95 So. 3d 1264, 1272 (¶ 21) (Miss. 2012); Rennie v. Rennie, 718 So. 2d 1091, 1095 (¶ 13) (Miss. 1998); Hemsley v. Hemsley, 639 So. 2d 909, 913 (Miss. 1994); Newman v. Newman, 558 So. 2d 821, 823 (Miss. 1990). But those cases dealt with the application of other federal laws pertaining to military benefits, such as the Uniformed Services Former Spouses’ Protection Act, not the Post-9/11 GI Bill. The instant issue is one of first impression for the Court, and we have not found any cases from any jurisdiction directly addressing the specific issue at hand.

¶10. In the instant case, the chancellor held that Joyce’s college expenses should be reduced by her scholarships and the $1,200 monthly housing stipend; then Tina and George were to split the remaining amount equally, with George taking full credit for all Post-9/11 GI Bill benefits except the housing stipend. George asserts that the chancellor’s treatment of the monthly housing stipend violated Section 3319, which provides that benefits transferred to a spouse or child “may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S.C. § 3319(f)(3) (2011). Tina maintains that the prohibition on treating transferred benefits as marital property is inapplicable, because the chancellor did not classify the stipend as marital property; thus, she maintains that the chancellor’s decision did not constitute a division of the benefits. Tina also argues that, because George transferred the benefits to Joyce, the benefits belong to Joyce much like her scholarships; therefore, Tina asserts that taking the benefits off the top before dividing the remainder between the parents was appropriate.

¶11. George earned the benefits at issue here long after the parties divorced, and neither party claims that the benefits are marital property. We agree that George’s Post-9/11 GI Bill benefits were not marital property because they were not earned during the marriage; thus, they were not subject to division. See Wheat v. Wheat, 37 So. 3d 632, 637 (¶¶ 14-15) (Miss. 2010); Hemsley, 639 So. 2d at 915 (Miss. 1994). While the chancellor did not label the benefits as marital property, his instruction to take the benefits off the top of Joyce’s expenses gave  Tina a credit that she otherwise would not have had and resulted in George not getting full credit for all of the Post-9/11 GI Bill benefits. We find that the chancellor’s decision effectively acted as a “division” of the benefits. Although the proceeding was not an original divorce proceeding, it was a “civil proceeding” pertaining to modification of a divorce decree. Therefore, we conclude that the chancellor’s allocation of the housing stipend amounted to a division of the benefits in a civil proceeding, which is prohibited by Section 3319(f)(3).

¶12. Tina’s argument that the GI Bill benefits belonged to Joyce lacks merit. When benefits are transferred, the service member has the option to revoke the transfer at anytime. 38 U.S.C. § 3319(f)(2) (2011). Thus, the service member remains in control of the transferred benefits, and they still belong to him. The chancellor held that George was entitled to credit for the rest of the benefits – the payments for tuition, fees, and books – but the $1,200 monthly stipend was taken off the top of the expenses and not credited to George. All of the benefits should be treated equally. Because the GI Bill benefits still belong to George, he should be credited with all of them, and none of the benefits should be divided between George and Tina.

The case was remanded to the chancery court.

The chancellor in this case did exactly what I think most chancellors would have done; that is, to credit George with the actual benefit of his entitlement that was being applied for the child during her minority, and splitting the remaining unpaid expenses between the two parents.

The wild card in this case, however, was the GI Bill, which includes express language against dividing the benefits. In this scenario, the MSSC found that the chancellor had, indeed, divided the benefits by force of his ruling, against the language of the statute.

This would seem to be a more frequently encountered fact situation as greater numbers of active-duty veterans pass through our courts in domestic relations actions. The Post-9/11 GI Bill is a law with which you need to become familiar.

THE END OF COLLEGE EDUCATION SUPPORT?

February 4, 2013 § 2 Comments

The seminal case of Nichols v. Tedder, 547 So.2d 766 (Miss. 1989) established once and for all two significant principles of Mississippi family law: One, that the duty of support for a child includes college education support; and two, that the duty to support a child can extend no further than the child’s 21st birthday.

Senate Bill 2339, introduced in this session by Senator Burton, would eradicate both principles.

The bill would amend MCA 93-11-65 with this language:

(9)  (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, for child support orders established on or after July 1, 2013, emancipation shall occur when the child:

(i) Attains the age of eighteen (18) years or graduates from high school, whichever comes later, but in no event shall the duty of support continue after the age of nineteen (19) unless otherwise agreed to in the support order, or

(ii) Marries, or

(iv) [sic] Joins the military and serves on a full-time basis, or

(b) Unless otherwise provided for in the underlying child support judgment established on or after July 1, 2013, the 260 court may determine that emancipation has occurred and no other support obligation exists when the child:

(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or

(ii) Cohabits with another person without the approval of the parent obligated to pay support.

(c) The duty of support of a child who is incarcerated but 268 not emancipated shall be suspended for the period of the child’s incarceration. [Emphasis added]

The implications of these changes for divorce practitioners?

Under our present law, the parties may agree to college education support to age 21 (or beyond if they can agree). They know that if they can not reach an agreement the court will likely order college support to age 21, which is the limit of the court’s authority under Nichols v. Tedder. So, recognizing the likelihood, most divorcing parents agree to college education support to age 21.

Under this bill, unless the parties agree, the duty of support will absolutely end at age 19, which would be during the sophomore or possibly junior year of college for most children. The court would have no authority to order any support beyond age nineteen, eliminating the bargaining pressure in favor of college support.

Based on years of experience negotiating PSA’s, I expect that college education support will fall into the category of “my client prefers to help his child voluntarily rather than being bound by any contract,” which translates into “he’ll never do it,” or “he might agree in the future if his ex will give up something more.”   

Anyone who has practiced any amount of divorce law is painfully aware of what many refer to as “divorce blackmail.” That’s the situation created by our present statutory divorce scheme, which requires the parties to agree in order to obtain a divorce where one of the fault grounds is not applicable. The party wanting the divorce more must give up more, sometimes everything, just to obtain the divorce. Under this bill, you can add college education support to the already long list of bargaining chips.

College education has been found conclusively to be a good thing for young people. It makes their financial future more secure, enhances earning ability, exposes them to new ideas, expands their horizons, and imparts advantages to them in innumerable ways. Children of divorced parents already face many financial challenges. Why would the public policy of Mississippi be to diminish the opportunity of children in a divorce to a college education?

The only reasons assigned for this proposal that I have heard are: (1) that Mississippi and New York are the last two remaining states who have 21 for the age of emancipation; (2) that lowering the emancipation age is the quid pro quo demanded by some legislators for them to agree to raise the statutory child support guidelines; and (3) that it would save DHS a lot of money.

The fact that we are one of only two states with this particular age of majority seems to me a laughable justification. If we were to go through and change every law where we were one of only a few states with a certain provision, we would literally have to rewrite our code, including elimination of separate equity courts (only four other states, as far as I know). Although we should always be informed and inspired by what other states do, our laws should be based on what is best for Mississippians, not on what everyone else is doing. The acid test should be: “How does this benefit our children?”

The second reason, about raising the guidelines, is based on an earlier part of the bill that would increase guideline child support percentages. The quid pro quo is that if we are going to increase the amount of child support being paid, we should decrease the amount of exposure time for the payer. I understand the politics of trade-offs, but how does this benefit children in Mississippi?   

The last is a byproduct of the harsh 21st century reality that many policy decisions that directly and indirectly affect many citizens are driven by budget considerations, often budget considerations that those same citizens neither benefit from themselves nor will ever. Yes, this will be a boon to the bean-counters at budget time, but again, how does it benefit our children?

I would have less heartburn with this bill if it were amended to add an education clause that would authorize court-ordered education support — college, technical, or otherwise — to age 21.

THE ZWEBER ZIG-ZAG ON COLLEGE SUPPORT

January 3, 2013 § 3 Comments

You may recall my post back in February, 2012, about the COA decision in Zweber v. Zweber, in which that court adopted what I described as a rather expansive definition of college education support. This is the case, you may remember, where the daughter took flying lessons toward an aviation degree, and the mother balked at paying her part of the rather pricy tab. The chancellor ruled that she must, and the COA agreed, holding in essence that any expense in furtherance of the college degree is included. 

Well, the MSSC reversed that COA decision on December 13, 2012. The MSSC decision in Zweber v. Zweber is one that all of you who prepare property settlement agreements (PSA) should study and take to heart.

The parties in Zweber had entered into a PSA that included the following language for college education support:

“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.” [Emphasis added]

At ¶ 15, Justice Dickinson’s opinion states: ” … the Court of Appeals correctly concluded that … in certain situations, parents may be required to pay for their children’s college educations and the extent of that obligation may go beyond payment for “meals, tuition, books, and room. But because the divorce decree in this case includes a specific provision addressing specific college expenses, it is distinguished” [from the cases cited by the COA].

This case highlights the critical importance of making sure that the PSA you offer for a particular client specifically meets the needs of that particular client. Don’t assume just because a provision got the desired results in one case that it will do the job an another case. One size does not fit all. In Zweber, if the provision had been drawn with less specificity, and possibly even made reference to the flying lessons, the result would likely have been different. Instead, the Supreme Court held that the unambiguous language of the parties’ contract governed. The specific, narrowly drafted language of the agreement saved Mrs. Zweber and cost Mr. Zweber.

As the MSSC said, in some cases, the covered costs may well go beyond, meals, tuition, books and room, but that depends on how the PSA is drafted.

DID COLLEGE SUPPORT JUST GET BIGGER?

February 21, 2012 § 2 Comments

Teresa and Charles Zweber got an irreconcilable differences divorce by consent in 2006. A special master heard their case, and the chancellor entered a judgment of divorce. Charles got custody of the parties’ daughter, Lindsey, and Teresa was awarded custody of the son, Daniel. Paragraph 9 of the judgment addressed the parties’ college support obligation. It reads in part:

“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.”

When Lindsey reached college age, she opted to attend Delta State University (DSU) and enrolled in that school’s commercial aviation program. The degree curriculum requires that the student take flight-training courses, most of which are at the student’s own expense. The expense is considerable: the university’s own published figures state that students can expect to spend around $55,000 for all of the required flight-training courses. Of course, as with all college students, Lindsey spent money in addition for books, tuition, pencils, paper, gasoline for her car, pizzas, makeup, hamburgers, hairdos, laptops and related paraphernalia, etc., etc., etc.

Charles sent Teresa a bill for her share of Lindsey’s college expenses. Included were the usual dorm and meal plan expenses, along with the charges for the flying instructions. Teresa deducted the flight instruction costs and began remitting a monthly payment to Charles for her share.

At trial the chancellor found that the flight-training expenses were necessary for Lindsey’s college degree, and ordered Teresa to pay up. Teresa appealed, claiming that the chancellor was in error due to the specific language of the college expense provision of the divorce judgment, which Teresa read to limit each party’s liability.

In a decision rendered February 14, 2012, in Zweber v. Zweber, Judge Griffis, writing for the majority of the COA, pointed out that the requirement of flying lessons and their cost were spelled out in the DSU catalog, and that they were required to complete the degree. In a masterful understatement, Judge Griffis observed at ¶ 17 that “Indeed, it does make sense that a student would have to learn to fly before he or she could graduate from a commercial aviation program.”

The opinion goes on to state:

In Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991), the supreme court held: “Though college expenses are not technically ‘child support,’ a parent may be ordered by the court to pay them. A parent may also be ordered to pay some portion of the resulting expenses of college, in addition just to tuition.” (Citing Wray v. Langston, 380 So. 2d 1262, 1264 (Miss. 1980)). Today, the cost of a college education is not simply limited to meals, tuition, books, and room. Instead, all related fees and expenses of the child’s college education must be considered. This includes the direct expenses charged by the college or university (i.e., tuition, on-campus housing, fees, books, or other related expenses), as well as indirect expenses that are necessary for the child to live as a college student (i.e., offcampus housing, meals, transportation, insurance, computers, clothing, and personal expenses). Indeed, all of these costs are required for the child to complete successfully his or her college education. We recognize that not every parent can afford to pay these costs. The law provides that the chancellor, not this Court, is in the best position to make this determination. Based on our de novo review, we determine that the chancellor’s decision on this issue was correct. We therefore affirm the chancellor’s judgment.

I may be wrong, but I don’t recall the appellate courts setting out a more expansive definition of college education expenses before now.

There are implications here for your PSA’s. In essence, what the COA is telling you is that, unless you specifically carve categories of expenses out of the definition of college support, your client may face some additional expenses that never occurred to you in drafting it. That could be unpleasant to have to explain to the client after the expenses were incurred.

What about where the non-custodial parent is paying college education support and child support? It would be prudent, for example, to spell out that the child support will go toward your client’s share of “Junior’s transportation, off-campus housing and all other living expenses while at college,” or some such language that covers your situation.

In any case, you should specifically carve out and allocate those living expenses, such as “Husband will be responsible to pay the cost of Junior’s automobile, including maintenance not to exceed $1,000 per year, and gasoline and oil not to sxceed $200 a month, and wife shall be responsible to pay the off-campus apartment rent and utilities,” or something like that. If you don’t, the sky’s the limit.

There are a couple of other aspects of this case that deserve your attention. I recommend that you read it. After you read it, I urge you to consider the language in your PSA’s addressing that college support obligation and whether you are adequately protecting the interests of your client.

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