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MichieHamlett Personal Services Attorney Ronald R. TweelPrivate Schools & Child Support

by RONALD R. TWEEL and MichieHamlett Attorney

Motions with the proliferation of private and parochial schools and the corresponding rise in attendance at these schools, the issue of these educational expenses and their impact on child support is receiving increased attention in the courts and in the negotiation of property settlement agreements. The importance of this issue cannot be overstated: the cost of private schools can be equal to or greater than college expenses; therefore, if these expenses are not properly addressed in child support litigation or negotiations, the result can mean near financial ruin for the custodial parent who must bear these expenses alone or, alternatively, if unfairly thrust upon the noncustodial parent, it can be equally, financially devastating. This article will attempt to summarize the current status of Virginia law on this topic and further to suggest some practice points for litigation.

In Virginia, as in every other state, the majority of parents send their children to public school. The cost of these public school, educational expenses are considered within the basic or presumptive child support amount. Smith v. Smith, 18 Va. App. 427, 435, 444 S.E.2d 269, 275 (1994); Va. Code Ann. § 20-108.2. As stated by the Smith Court:

    Implicit in the [child support] statutory scheme is that educational expenses are included in the presumptive amount of child support as calculated under the Code.

Id. at 435, 444 S.E.2d at 275. One of the component parts of the presumptive child support amount, therefore, is public educational expenses, as well as food, clothing, housing, transportation, health care and miscellaneous expenses. However, educational expenses for private and parochial schools are not addressed by the child support tables found in Va. Code Ann. § 20-108.2; therefore, these expenses are necessarily a deviation from the presumptive amount of support. The deviation factor to be considered here is contained in Va. Code Ann. § 20-108.1 (B) (6) which provides:

    Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to Subsection D, educational expenses or other court ordered direct payments for the direct benefit of the child and costs related to the provision of health care coverage pursuant to Subdivision 7 of Section 20-60.3.

(emphasis added).

The practitioner, if confronted by a private school case, must essentially review cases decided by the Court of Appeals, as our Supreme Court has yet to address this issue. Of all those cases, the case of Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157 (1996) best sets forth the criteria to be used by our courts when deciding whether to deviate from the presumptive amount in order to pay for private school expenses.

The facts in Solomond are somewhat unusual. The parties were divorced in 1988 with custody being awarded to the wife. Both children attended public schools; however, in 1994, the wife filed a motion to increase support because her two sons had been accepted to Corpus Christi, a private catholic school. The trial court held that the children's acceptance to this school was a material change in circumstances that justified modifying the child support order and, therefore, ordered the husband to pay 70% of all school related costs including, but not limited to, the expenses of tuition, uniforms, books, transportation, supplies, registration, testing fees, and field trips, as such expenses and costs were due. In an interesting twist, the court also held that if the children succeeded in gaining entrance to another school whose tuition was higher, this would constitute a sufficient change in circumstances to reevaluate the percentage each parent would be required to pay. The husband did not appeal this order.

One year later the wife filed another motion when the children were accepted to a more expensive private school. The trial court held that the admission to the more expensive school constituted a material change in circumstances and that it would be in the best interest of the children to take advantage of this educational opportunity.

The Court of Appeals, in reviewing the trial court's decision, first held that they were unable to disturb the trial court's finding that it was in the cuse that first hearing had never been appealed. Using the same rationale, the Court of Appeals held that they were also unable to disturb the trial court's holding that the changed circumstances justified deviating from the child support guidelines to require the father to pay additional sums for the children's private school. However, the Court of Appeals was not bound by the trial court's "anticipatory language" that the children's admission to another, more expensive school would constitute a material change in circumstances that would justify a reevaluation of the father's support obligation.

In reversing the modification order and remanding the support issue for reinstatement of the previously awarded amount of child support, the Solomond Court appeared to adopt the rationale of other jurisdictions and set forth two conditions which must exist before a deviation is appropriate. These two conditions are: 1) "demonstrated need of the child," and 2) "the parent's ability to pay," Id. at 391, 470 S.E.2d at 160 (citing In re Marriage of Stern, 57 Wash. App. 707, 789 P.2d 807 (Wash. Ct. App.) review denied, 115 Wash. 2d 1013, 797 P.2d 513 (Wash. 1990)). The Court then set forth factors to be considered "not only for determining whether a demonstrated need has been shown for the child to attend private rather than public school, but also for determining whether there is justification for requiring a parent to pay for a child to transfer to a more expensive private school." Id. at 391-392, 470 S.E.2d at 160. These factors are as follows:

  • Availability of satisfactory schools.
  • The child's attendance at private school prior to the separation and divorce.
  • The child's special emotional and physical needs.
  • Religious training.
  • Family tradition

Once again the court cited numerous cases from other jurisdictions to justify these criteria. The Court found as unpersuasive the trial court's conclusion that it would be in the children's best interest to be able to take advantage of this opportunity. The trial court made no written findings of fact as required by §20-108.1 that justified further deviation from the guidelines. Further, the record did not demonstrate a need of either child, which would be served by the new school that was not being met at the present private school. Therefore, the Court felt that the trial court's findings provided no justification for the transfer from one private school to the next.

One final interesting note to this case, is that it is not permissible for a court to require a noncustodial parent to pay a certain percentage of educational expenses. The Court noted that child support awards must be based on contemporary circumstances and modified in the future as changes in circumstances occur. This does not allow for an order that results in an automatic increase in the support obligation upon the occurrence of future events. Keyser v. Keyser, 2 Va. App. 459, 461, 345 S.E.2d 12, 13 (1986); Jacobs v. Jacobs, 219 Va. 993, 995 - 96, 254 S.E.2d 56, 58 (1979). Since the trial court set the husband's support obligation as a percentage of the children's educational expenses, rather than a specific monetary amount, the case was remanded for the trial court to require the husband to pay the presumptive amount plus an additional, specific amount equivalent to the percentage which it had previously ordered. Therefore, it will be incumbent upon the practitioner to introduce the specific dollar value of all of the educational expenses for which counsel is asking the court to require the noncustodial parent to pay. Even though it has been our experience that this requirement is frequently violated by trial courts, it would be best not to invite error by asking a trial court to order the noncustodial parent to pay a percentage of private school expenses.

A recent case which also addresses the issue of transferring from one private school to a more expensive private school and the difficulties encountered therewith, is Challoner v. Challoner, Unpublished, Record Nos. 1847-96-1 and 2294-96-1 (April 1, 1997). The analysis of the private school/child support issue contained in this case constitutes dicta due to the fact that the equitable distribution award was reversed causing all property and support issues in the case to be reevaluated on remand. Nonetheless, the Court set forth the difficulty that one will face when attempting to transfer a child to a more expensive private school.

In Challoner, the children had attended private school prior to the separation of the parties. Further, the parties were in agreement that the children should continue with private education; however, the increased cost of that private school education and who should bear the burden of that cost was in dispute. The Court of Appeals found that the private school costs of the children had increased from $11,050.00 to $23,790.00 which prompted the trial court to increase the child support obligation from $2,487.00 to $3,787.00 per month. The Challoner Court noted that the trial court had justified its deviation from the presumptive amount by stating that it would be unjust and inappropriate because of the following factors:

  • The standard of living the family established during the marriage, §20-108.1 B (10).
  • Particular problems of one or more of the children, §20-108.1 B (8).
  • The indicated desires of both parties to continue with the private education of the children.
  • The earning capacity, obligations, needs and financial resources of the parties, §20-108.1 B (11)

The Court hinted in dicta that the trial court's reasons for deviating from the child support guidelines were not sufficient. The Court stated that in deviating from the presumptive amount of child support, the trial court on remand should consider what specific circumstances justify requiring a noncustodial parent to pay for significantly increased tuition cost. It can be inferred that such a case had not been made out in the first trial. This demonstrates that even though the parties had agreed that the children should continue with their private school education, such an agreement does not necessarily justify requiring the noncustodial parent to pay for the increased cost.

Another case which demonstrates the interplay between the prior agreement of the parties to have their children attend private school and the noncustodial parent's ability to pay is Sa'ad El-Amin v. Adams, Unpublished, Record No. 1061-93-2 (May 24, 1994). This case arose out of the noncustodial parent's motion to modify his previous child and spousal support obligation. At the hearing, the spousal support award was reduced from $3,000.00 per month to $1,500.00 per month; however, the request to reduce the child support from $1,500.00 to a lower amount was denied. The trial court accepted the noncustodial parent's testimony that his law practice was not prospering and that there was a change in circumstances, yet, the court maintained his child support obligation at $1,500.00, noting that it deviated from the child support guidelines because both parties had agreed that their daughter should continue her private school education. This decision was also based on the trial court's finding that the noncustodial parent was in a better financial position than the custodial parent to pay for their daughter's tuition.

The Court of Appeals agreed with the noncustodial parent that the trial court erred in calculating child support. Interestingly, the Court looked not only at the deviation factors contained in §20-108.1 (B) but also to "traditional standards of reasonableness" when determining his support obligation. Id. at 5. In support thereof the Court cited Conway v. Conway, 10 Va. App. 653, 395 S.E.2d 464, (1990), for the proposition that a trial court must consider the basic needs of the child, the parent's ability to pay and, to the extent that the parent is able to provide more than basic necessities of life, the degree to which the child should reasonably share in his or her parents' prosperity. Id. at 658, 395 S.E.2d at 466-67. The Court disagreed with the trial court's strict reliance upon the noncustodial parent's testimony from an earlier divorce hearing that he agreed that his daughter should continue her education at a private school. Further, the Court, while recognizing the parties' prior agreement to send their child to private school, relied heavily upon the present economic realties of the parties. It accepted the noncustodial parent's argument that he did not have the financial resources to continue to pay the educational expenses, which were not a necessity, but an elective benefit which should not be required when resources are inadequate. Of special note, is the Court's reliance on the custodial parent's failure to demonstrate any "special needs" by the child for private school.

The lesson to be learned from the Sa'ad El-Amin case is that although the parties prior agreement is to be given considerable weight as to whether private education should be a deviation from the presumptive amount, the present economic realties will override this if the decline in income was unavoidable. See also, Wheaton v. Wheaton, Unpublished, Record No. 1323-96-3 (April 15, 1997) (court found as critical the children's attendance at private schools during the entirety of the parent's marriage--a factor which would probably override the noncustodial parent's request to remove them from private school during the school year; however, the issue was remanded because the trial court made the procedural error of not making written findings before deviating). We feel that the tension between the parties' prior agreements and the present ability to pay will probably be resolved in favor of the latter. This is true even when the agreement is embodied in a written separation agreement. The case of Wirth v. Wirth, Unpublished, Record No. 0772-92-1 (May 18, 1993) illustrates this point.

In the Wirth case, the noncustodial parent filed a motion for a reduction of child support due to a material change in circumstances. The trial court found that the noncustodial parent had suffered a reduction in income due to various factors related to his practice of medicine. The trial court determined that the presumptive amount of support was $1,880.00, which determination was not disputed by the parties. The disputed issue before the Court of Appeals was the trial court's deviation from the presumptive amount, pursuant to the deviation factors found in Va. Code Ann. § 20-108.1 (B) and the terms of the parties' property settlement agreement. The Wirth Court held the trial court's deviation to be valid in light of its holding in Watkinson v. Henley, 13 Va. App. 151, 409 S.E.2d 470, (1991), wherein it held:

    While a particular amount may appear to be ‘just and appropriate' on its face when considered in comparison to what the parties have agreed upon and the relation to other extraneous circumstances, the presumptive amount may be unjust and inappropriate. The court may vary from the guidelines by considering any relevant evidence which pertains to the factors set forth in Code § 20-107.2 and 20-108.1, which factors may be reflected in the child support or other provisions of an agreement which indirectly benefit a child.

Id. at 158, 409 S.E.2d at 473. (emphasis added) The Court further held that the trial court must consider the provisions of the separation agreement as it relates to the issue of whether a deviation is justified. This does not mean, however, that the terms of a separation agreement will carry the day and the practitioner would be wise not to rely solely on an agreement which is favorable to the client's position, to justify a deviation.

Another interesting aspect of the Wirth case, and an argument which should be made if one seeks a deviation based upon private school, is the "best interest" argument. In this decision, Judge Benton articulated, in the private school context, the concept that the best interest of the child "is the paramount and guiding principle in setting child support whether it be in adopting the presumptive amount, calculating an alternate sum after the presumptive amount has been rebutted, ordering the amount agreed upon between the parents, or approving, ratifying, and incorporating, in whole or in part, the child support provisions of a contract." Id. at 2. The concept of "best interest" is not used in any of the other cases where private school costs have been at issue and, therefore, the Wirth case is also significant for this reason.

It is also noteworthy that specific calculations were not required in the Wirth case. The Wirth Court affirmed the deviation even though the trial court did not make a specific calculation showing the precise allocation of dollars to the factors used to calculate the deviation. The Court found it sufficient for the trial judge to make specific reference in his opinion letter to the private school tuition for the parties and that the amount of the deviation had a rational correlation to the amount proved for the tuition payment.

The various decisions from our Court of Appeals seem to differ on what they consider to be suis Court have not been so lenient toward the trial judge's opinions. See Newland v. Newland, Unpublished, Record No. 1837-96-4 (April 8, 1997) (trial court did not appear to make findings to support its deviation but was, nonetheless, affirmed). In sum, it appears that there may be an inconsistency in the case law. On the one hand a "best interest" analysis is used, whereas, on the other hand, a parent's ability to pay is controlling. The greater weight of the case law, however, seems to be tilted in favor of the parent's ability to pay (at least on the issue of private school education).

Finally, even though Solomond supra, is decided in the context of changing from one private school to another, the same analysis would apply, in general, if a party seeks to transfer a child from public school to private school. It will be more difficult, however, for a client to convince the court to transfer a child from a public school to a private school because there would be no history or precedent for such a schooling. This would be tantamount to the Solomond dilemma where the custodial parent sought to transfer the child from one private school to a more expensive private school. Although the problems encountered would be different for each, the transfer from one private school to another private school involves mostly the issue of money whereas the transfer from public school to private school involves two issues: the ability to pay and the need for the change from public to private. It seems to us that the latter is more difficult to prove than the former.

When one is attempting to convince a court to deviate from the presumptive amount of child support to include private school expenses, we believe the following techniques and/or ideas should be considered individually or collectively:

  • It is better not just to include the tuition cost but also to include all other costs including books, extracurricular activities, sports equipment, field trips, etc.
  • If the child (or children) is already in private school, stress the success that the child has had. Report cards or other awards or certificates should be introduced into evidence.
  • If the noncustodial parent attended private school, admit into evidence statements made by him/her as to why and how it was beneficial. These statements could possibly have been made during the course of the marriage or even previous litigation.
  • Describe in detail the numerous activities which the child has engaged in or which are available at the school, especially if these activities are not available through public school.
  • Have the child's teacher testify as to how the child is performing and the unique opportunities provided by the private school.
  • Describe the close friendships which the child has made at the private school and the contacts with these children outside of the school environment.
  • Describe in detail the athletic opportunities that are available in the private school. If the public school is considerably larger, it is perhaps likely that the child will be able to engage in a varsity sport at a private school but not in the public school.
  • Describe the difference in the class size between the public school and the private school.
  • Describe the variance between the SAT scores at the private school and the public schools, if helpful.
  • Describe the advanced placement courses available at the private school as opposed to the public school, if helpful.
  • Describe the various field trips available in the private school as opposed to the public school, if helpful.
  • Be specific in terms of the expenses for all of the activities at the private school and not just the cost of tuition and books

In essence, you are attempting to sell the private school as a better alternative to the public school. It would be helpful to contact the headmaster of the private school to marshal your evidence and factors as to why such a school is preferable in your given community.

In conclusion, it strikes us that three elements seem to be most critical: 1. The previous agreements, either verbal or written, between the parties as to the need for a private school; 2. The noncustodial parent's ability to pay; and 3. The specific need of the child or children to attend a private school. These three concepts should be at the heart of any case regardless of whether one represents the custodial or noncustodial parent. The above-cited case law gives you ample authority for arguing either side of this complex but emerging issue. For your convenience we have cited all of the relevant cases below:

  • Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269, (1994).
  • Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157 (1996)
  • In re Marriage of Stern, 57 Wash. App. 707, 789 P.2d 807, (Wash. Ct. App.) review denied, 115 Wash. 2d 1013, 797 P.2d 513 (Wash. 1990)
  • Keyser v. Keyser, 2 Va. App. 459, 345 S.E.2d 12, (1986)
  • Jacobs v. Jacobs, 219 Va. 993, 254 S.E.2d 56, (1979)
  • Challoner v. Challoner, Unpublished, Record Nos. 1847-96-1 and 2294-96-1 (April 1, 1997)
  • Sa'ad El-Amin v. Adams, Unpublished, Record No. 1061-93-2 (May 24, 1994)
  • Conway v. Conway, 10 Va. App. 653, 395 S.E.2d 464, (1990)
  • Wheaton v. Wheaton, Unpublished, Record No. 1323-96-3 (April 15, 1997)
  • Wirth v. Wirth, Unpublished, Record No. 0772-92-1 (May 18, 1993)
  • Newland v. Newland, Unpublished, Record No. 1837-96-4 (April 8, 1997)
  • Watkinson v. Henley, 13 Va. App. 151, 409 S.E.2d 470, (1991).

For additional information, Contact Maggie Pearson, MichieHamlett, 434.951.7265 or by Email

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