Practicing Family Law In The 21st Century – Series Post No. 3: Solving The “College Expense” Conundrum – A Form For Your Agreements

If you were practicing family law in South Carolina prior to 1979, then you were able to advise your clients, with some reasonable degree of certainty and with only certain limited exceptions (such as a child’s disability), that when their child reached the age of 18 and became an “adult”, the parents’ legal obligation to provide court-ordered financial support for that child ended.

And then this happened …

In 1979, the South Carolina Supreme Court, in the then precedent-setting case of Risinger v. Risinger, determined that a parent’s potential court-ordered obligation to provide child support for his or her child did not necessarily stop at the “water’s edge of adulthood”, but rather, if that 18-year old child decided to go to college (or have a “post-secondary education”), then both that child’s decision and his or her college-related expenses could be considered “an exceptional circumstance” under the now-repealed Section 14-21-810(b)(4), SCCA, [this code section was replaced by the current Section 63-3-530(A)(17)] which supported the family court’s authority to require the parents to continue to provide college-related financial assistance for that child, as a matter of law.

And from 1979 until 2010, that issue was settled law in South Carolina – stare decisis.

And then this happened ……

In 2010, in a 3 – 2 decision, our Supreme Court in Webb v. Sowell, decided that a family court judge was without constitutional authority to order a non-custodial parent to pay the college expenses of an adult child.  In Webb, the majority centered its decision on a “constitutional equal protection” argument and stated the following, in part:

“Father argues that this Court’s interpretation in Risinger of the statute now found at S.C. Code Ann. § 63-3-530(A)(17) violates equal protection.  We agree, and find no rational basis for a rule that permits a family court to order a parent subject to a child support order to contribute to an emancipated child’s post-secondary education. … the Risinger Court focused on the interests of the child.  The instant case, however, requires us to examine the rights of the parents.”

Following the decision in Webb the “attorney’s gyroscope”, which historically has allowed this State’s family court bar to absorb, process, and then use every appellate court opinion to the attorneys’ advantage, was knocked off its foundation.  Now what were we attorneys and mediators (and to a lesser extent, judges) to do?  Well, between April 19, 2010, and March 7, 2012, we could now, with a degree of absolute certainty, tell clients and litigants that, unless there was an agreement by the parents otherwise, no family court judge could order a parent to spend a dime on his or her child’s college educational expenses.  Period.

And then this happened …..

On March 7, 2012, also in a 3 – 2 decision, our Supreme Court in the case of McLeod v. Starnes stated that “(T)oday, we hold that Webb was wrongly decided and remand this matter for reconsideration in light of the law as it existed prior to Webb“.

What?? Wait a minute … what did that just say??

Interestingly, McLeod was actually argued before the Supreme Court on February 15, 2011, a full year prior to the decision being published and less than one year after Webb had been decided.

If you’ve read both Justice Hearn’s majority opinion and Justice Beatty’s dissent in McLeod, and notwithstanding this singular importance of the decision itself, as a fan of legal writing you would have been treated to outstanding displays of written artistry and advocacy at its finest.  Both opinions were beautifully crafted.

Justice Hearn wrote, in part:

“This State has a strong interest in the outcome of disputes where the welfare of our young citizens is at stake.  As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society.  It is entirely possible “that most parents who remain married to each other support their children through college years.  On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.” Therefore, it may very well be that Risinger sought to alleviate this harm by “minimiz[ing] any economic and educational disadvantages to children of divorced parents.”  There is no absolute right to a college education, and section 63-3-530(A)(17), as interpreted by Risinger and its progeny, does not impose a moral obligation on all divorced parents with children.  Instead, the factors identified by Risinger and expounded upon in later cases seek to identify those children whose parents would otherwise have paid for their college education, but for the divorce, and provide them with that benefit.

We accordingly hold that requiring a parent to pay, as an incident of child support, for post-secondary education under the appropriate and limited circumstances outlined by Risinger is rationally related to the State’s interest.  While it is certainly true that not all married couples send their children to college, that does not detract from the State’s interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents.  Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced.  It is of no moment that not every married parent sends his children to college or that not every divorced parent refuses to do so.  The tenants of rational basis review under equal protection do not require such exacting precision in the decision to create a classification and its effect.”

Which finally brings me to the purpose of this post.

In July, 2013, I had an opportunity to mediate a case in which the only issue centered on a parent’s contribution towards the child’s college-related expenses.  We were able to fully resolve that case at mediation, and I crafted a proposed final agreement for the parties’ review and approval where I struggled with trying (a) to provide enough detail and clarity regarding both the adult child’s and the parents’ respective financial responsibilities and (b) to insure if I could, and to the greatest extent possible, future flexibility in the applications of these provisions in the event, for some unknown and unexpected reason, a South Carolina Supreme Court with a “changing majority” decided to go “Back to the Future” on this issue.

Although I never take “pride of authorship”, and I urge that you always use caution in crafting and drafting your agreements, I’m simply hoping that with this “form”, below, you’ll find something both useful to you and timesaving for you.  The practice of family law is difficult enough where virtually nothing can safely be considered “settled law” … and I profoundly wish you good luck out there.

The link to this “form” which I now use is as follows:  Form For College Expenses.