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ARTICLE:
Private Schools & Child Support
by RONALD
R. TWEEL
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).
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