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
other things.
¶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.
Canary in a Gold Mine*
November 5, 2013 § 2 Comments
Can a father be ordered to buy a car as part of educational (college) expenses for his child? And what exactly is the relationship between college education support and regular child support?
Those were the two essential questions before the court in the case of Brooks v. Fields, decided by the COA October 15, 2013.
Ronald Brooks was adjudged to be the natural father of a daughter, Canary DashSherrel Brooks, born to Janice Fields. The parties agreed to an amount of child support and to split Canary’s medical expenses between them.
Janice later filed a petition to modify child support for the child, who apparently was approaching college age. At the time, Ronald was an unemployed veteran living with his mother. He reported income of $2,700 a month but conceded that his income would increase once his Social Security Disability claim was approved, and he also had recently received $25,000 in lump-sum VA benefits. Canary was receiving $936 a month in VA benefits through her father, and an additional $678 in SS benefits. Ronald claimed net monthly income of $900 a month after payment of all of his living expenses.
The chancellor ordered Ronald to pay $15,000 in a lump sum within 90 days to purchase a vehicle for Canary’s transportation to and from college. He also ordered Ronald to pay the cost of insuring the car. Ronald and Janice were each ordered to pay one-half of the cost of college after grants, etc.
Ronald appealed. He argued that it was error for the chancellor to order him to pay for a vehicle that was beyond his financial means, and that the court’s ruling did not take into account the statutory child support guidelines or the VA and SS benefits that Canary was already receiving.
In its decision, authored by Judge Griffis, the COA spelled out the law of support for college-age children:
¶12. Mississippi law provides that parents can be required to pay reasonable expenses associated with a child’s college education, where the child shows an aptitude for college. Pass v. Pass, 238 Miss. 449, 455, 118 So. 2d 769, 771 (1960). This Court has held that automobile expenses may be awarded as part of college expenses. Striebeck v. Striebeck, 911 So. 2d 628, 637-38 (¶¶36, 41) (Miss. Ct. App. 2005). Specifically, the supreme court has upheld a chancellor’s order for a parent to purchase a vehicle as part of a minor child’s educational expenses, and held that “[t]hough an automobile is not an expense which every parent can provide his/her child, it is not an abuse of a chancellor’s discretion to require a parent to purchase a vehicle where warranted by the circumstances in a particular case.” Chesney v. Chesney, 910 So. 2d 1057, 1065 (¶25) (Miss. 2005).
¶13. The supreme court has also held that it is the responsibility of parents, not the child, to provide funds for education, even if the child has an independent source of funds. Saliba v. Saliba, 753 So. 2d 1095, 1099 (¶13) (Miss. 2000). Payments for college-education expenses, however, do not qualify toward statutory child support, nor will they render child support otherwise within the statutory guidelines to exceed the guideline amount, because “they do not diminish the child’s need for food, clothing[,] and shelter.” Cossey v. Cossey, 22 So. 3d 353, 358 (¶20) (Miss. Ct. App. 2009) (citations omitted).
That bold language is important. I think most chancellors take the position that the college support and child support need to be considered all together, based on the child’s needs and the parents’ resources.
So, what should the trial court consider in determining what is reasonable for a parent to pay? Judge Griffis’s opinion continues:
¶14. Mississippi law, however, limits the parental requirement for payment of educational expenses. The supreme court has determined that a child, if the father is financially able, is entitled to attend college in accord with her family standards. Wray v. Langston, 380 So. 2d 1262, 1264 (Miss.1980) (emphasis added). Mississippi Code Annotated section 93-11-65(2) (Supp. 2012) provides “that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The supreme court has interpreted this statute to authorize the chancellor to hold parents liable for educational expenses commensurate with the parents’ station in life; and the parents are not obligated to provide such support if it is beyond their station in life. Saliba, 753 So. 2d at 1103 (¶27) (citation omitted).
¶15. Here, the chancellor clearly had the discretion to require both Brooks and Fields to contribute to Canary’s college-education expenses, which included the vehicle purchase, without consideration of the monthly benefits Canary received and in addition to the statutory support. However, we find that the chancellor abused his discretion when he required Brooks to pay a $15,000 lump sum toward the purchase of a vehicle for Canary. The evidence does not support this decision.
¶16. Brooks’s financial statement indicated that he had $900 in disposable monthly income. Even though his disposable income was soon to increase based on additional disability benefits he was to receive, he was still a disabled veteran on a fixed income. Indeed, a lumpsum payment of $15,000 for the purchase of a vehicle was hardly commensurate with his station in life. There was simply no evidence that Brooks was financially able to pay the cost of the vehicle and the costs of Canary’s other college expenses. Brooks offered to help purchase a vehicle for Canary at a more reasonable price he could afford. The lump-sum payment of $15,000 was well beyond Brooks’s financial means.
¶17. The chancellor relied on the $25,000 lump-sum back payment Brooks received from his Veterans Administration benefits when he ordered Brooks to make the lump-sum payment. There was evidence that Brooks had spent $9,900 of that money for the cash purchase of two vehicles, which would presumably leave him $15,100 in disposable income. However, there was no evidence that Brooks had any of this disposable income or cash on hand at the time the chancellor ordered the payment. Thus, we find that the chancellor’s decision to order Brooks to pay the $15,000 lump sum for the vehicle purchase was not supported by substantial credible evidence in the record. Thus, the chancellor was not within his discretion to award a lump-sump payment of $15,000 to Fields for the purchase of a vehicle for Canary. Therefore, as to this award, we reverse and render the chancellor’s judgment.
The case is a template for how to analyze college support vis a vis child support, and the extent of the parents’ responsibility.
With the reversal, then, the gold mine awarded by the trial court is reduced to a coal mine by the COA.
* Apologies for the title to musicians The Police and Sting.
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