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College Expenses and Divorce
In today's society, very few people would doubt the need for a High School graduate to go on to and complete college. A college degree is as much as necessity today[1] as a high school diploma was thirty years ago. With that in mind, when the Child Support Standards Act (CSSA) was passed in 1989[2], a specific provision was included to permit a direction for educational expenses[3]. What seemed, finally, a simple resolution to the cost of college, has, in my opinion, been just recently made more difficult.

The principle that complicated the matter[4] is the question of whether or not when a child[5] is away at college if the non custodial parent should have any reduction in child support paid to the custodial parent, over and the costs of tuition, room and board, books, transportation and school fees. It seems it has always been argued that a child away at school saves the custodial parent money in some regard. At least the saving is, or so it has been argued, for the costs of room and board, i.e. a place to live and food on the table.

For the moment, forgetting about case law and just taking a practical view of the expenses of a college student, there is no true savings for any of the usual daily expenses of the custodial household, except for food, based upon the child needing at least the same items of clothing, spending money, etc., along with the actual cost of tuition and books. This position was noted and agreed with in Matter of Haessly v. Haessly[6], which held that:

Although there is some duplication of shelter and food, the custodial parent, as in petitioner's case, continues to maintain the family home, feed the student when he is home from school on weekends, vacations and summer recess, and continues to provide other necessities such as clothing. Although the courts have recognized that the inclusion of room and board in college expenses can justify an adjustment in the child support against the college award(see, Guiry v. Guiry, 159 AD2d 556, 552 NYS2d 421; see also, Matter of Healy v. Healy, 190 AD2d 965, 966-967, 594 NYS2d 90, supra), such adjustment or credit is not mandatory, but depends upon the facts and circumstances of the particular case [citation omitted]...[Emphasis supplied][7]

In addition, as children away at school do spend a considerable amount of time home during various breaks and the summer, the custodial parent is not in a position to obtain smaller housing quarters for his/her family. Admittedly, less food would be bought while the child is away at school and on a meal plan, or the child would have to, if living off campus, be supplied with separate funds to purchase his/her own food.

With that as a practical background, the Second Department rendered, in a short period of time, three decisions which, it is my opinion, clearly and completely changed the law on the subject. I was involved as counsel in Justino v. Justino[8], and that decision is the starting point of my analysis. In Justino, the non custodial parent was the husband. His earnings were consistently in the $95,000 to $105,000+ range. Based upon the percentages under the CSSA, and with consideration for Cassano v. Cassano[9], the parties stipulated that child support for the two children[10] would be $440 per week. The oldest child, a student at Hofstra University on partial athletic scholarship, had college expenses, after all aid packages, of $4,000 for the first school year. The trial Court, based upon the child support and maintenance awarded and the approximate available income after same, directed that the Husband pay 50% of the oldest child's college expenses. On appeal, the Second Department held that:

...the direction to the husband to pay a proportionate share of the college expenses of the children was proper(see, Domestic Relations Law 240[1-b][c][7]; Manno v. Manno, 196 AD2d 488, 600 NYS2d 968; Reinisch v. Reinisch, 226 AD2d 615, 641 NYS2d 393). However, the court erred in directing the husband to pay child support and contribute to those college expenses without including a provision reducing the level of child support or crediting the husband any amounts he contributes toward college expenses when the children live away from home while attending college(see, Reinisch v. Reinisch, supra; Guiry v. Guiry, 159 AD2d 556, 552 NYS2d 421).[11]

The decretal part of the decision directed that:

...directing the plaintiff husband to pay the defendant wife the sum of $440 per week as and for child support...except that during the period when the plaintiff husband is (1) paying child support for both children and the oldest child is living away from home while attending college, up to one-half of his child support obligation shall be credited toward his contributions to the costs of that child's education, (2) paying child support for both children and they are both living away from home while attending college, up to the full amount of his child support obligation shall be credited toward his contributions to the costs of their education, and (3) paying child support for the remaining unemancipated child and that child is living away from home while attending college, up to the full amount of his child support obligation for that period shall be credited toward his contributions to the costs of that child's education...[12]

What has the Appellate Division directed? As I read the direction of the Court, unless the amount of the husband's share of cost of college is more than the child support he is paying for that child, he has no obligation to contribute toward college! Frankly, on behalf of my client, I had hoped that the Court did not realize the effect of that wording would relieve the husband of his obligation to make any contribution for college expenses; so I moved to reargue, which application was denied by the Court[13].

Interestingly enough, it should be noted that in the trial Court, the husband did not even address the issue of a request for credit on child support while a child was living away at college; yet the appellate division dealt with that issue on appeal. However, if one represents the custodial parent, to keep the Justino credit to a minimum, evidence must be presented to show the minimal savings and actual costs when the child is at college.

In making that motion to reargue, I considered the law up to that point to consider how the law got to that point. In doing so, past cases noted that such a credit is not always appropriate, see Paro v. Paro[14] and Matter of Haessly v. Haessly[15]. In fact, cited in Paro is Matter of MacVean v. MacVean[16], which held that:

...it is inappropriate to deduct the child support payments from respondent's income and add any portion of those payments to petitioner's income to determine the parties' relative obligations for their children's college educational expenses. Although the $8,400 in annual child support paid by respondent is not available to him as a resource from which to pay college expenses, those payments also are not available to petitioner as a resource from which to pay college expenses, for child support is intended to be used for the children's care, maintenance and education(see, Family Ct.Act 413[1][b][2]), but not post secondary education unless a separate award is made (see, Family Ct.Act 413[1][c][7]).[17]

In both Reinisch and Justino, Guiry v. Guiry[18] was cited by the Court as a basis for its decision. Guiry directed that child support be reduced to $40 per week for the weeks when the child is actually attending college, noting that:

Since the ordered support payments required husband to pay half his son's college expenses, the court improvidently exercised its discretion in declining to provide the husband--the noncustodial parent--with either a credit against or a deduction in the amount of his child support obligation payable directly to the wife, reflecting his 50% contribution for room and board during the son's attendance at Scranton University (cf., Matter of Kirschner v. Kirschner, 119 AD2d 962, 501 NYS2d 224; Trentalange v. Trentalange, 96 AD2d 534, 464 NYS2d 842).[Emphasis supplied][19]

Both of the cases cited in Guiry, Matter of Kirschner v. Kirschner[20] and Trentalange v. Trentalange[21] concerned interpretation of agreements. As such, they were questionable authority to justify the result in Guiry, let alone Reinisch or Justino.

Finally, the Court in Justino primarily relied upon Reinisch v. Reinisch[22] to justify its decision. The decretal portion of Reinisch is almost identical to that found in Justino and contained a determination that:

...it was improper to direct the husband to pay child support and contribute to the expenses of the children's college education without including any provision reducing the level of support or crediting the husband for the amounts contributed to the costs of their college education during periods when the children live away from home while attending college and, therefore, the judgment has been modified accordingly (see, Guiry v. Guiry, 159 AD2d 556, 557, 552 NYS2d 421).

In essence, in both Reinisch and Justino, the Appellate Division took the same decision, i.e., Guiry, where child support was reduced somewhat, but not completely, to justify a practical result where no contribution would be made toward college unless the costs was in excess of $20,000 by the non-custodial parent[23].

Also citing Reinisch is Litwack v. Litwack[24], which was decided after Reinisch, but before Justino. Litwack has almost identical decretal language as in both Reinisch and Justino. The child support amount in Litwack is $2,900 per month for twins, resulting in an identical result.

In another recent case, in the Fourth Department, Burn v. Burns[25], the Court dealth with all the relevant issues, made a contrary determination even though the father was paying for room and board at college, noting that:

In the present case, the record shows that plaintiff, the custodial parent continues to maintain the family home; that, although Christopher resides on campus in his dormitory room during the weekdays, he returns home on weekends; that, after early December 1994, the funds on Christopher's dining plan card were exhausted and plaintiff provided or purchased all food for Christopher for the remainder of the school year; and that plaintiff paid for numerous day-to-day purchases at the campus book and computer stores after the funds provided by defendant were exhausted in early December 1994.[26]

But a dissenting opinion cited Reinisch, and noted that:

Whether the amount of child support should be reduced is within the Supreme Court's discretion (see, Paro v. Paro, 215 AD2d 965, 966, 627 NYS2d 465). In circumstances of this case, however, I conclude that the refusal to reduce child support in any amount constitutes an improvident exercise of discretion(see Reinisch v. Reinisch, __AD2d __, 641 NYS2d 393; Guiry v. Guiry, 159 AD2d 556, 552 NYS2d 421).[27]

One of the interesting things to note in Reinisch, Litwack and Justino is that the Appellate Division approved a direction to contribute toward the cost of college, and then, for all practical purposes, negated that direction by crediting all child support before such contribution would kick in. On one hand, the Court gave it and then took it away. Burns noted, in my opinion, a much more practical approach in denying the credit sought.

I try to learn from each case I handle, both the "victories" and the "defeats." My thoughts concerning the decisions of Reinisch, Litwack, Burns and Justino are as follows. First of all, in my opinion, the decisions in the Second Department are wrong or go too far in seeking to be fair to the non custodial parent. But, as I have learned over the years, my opinion, is just that. The opinion of a Judge or the Appellate Division speaking as a Court is the law. Taking that into account, my future representations, taking these decisions into account will be effected accordingly.

When I represent a custodial parent and the question is a request for contribution for college, perhaps I will be quick to consent to a partial reduction in child support to insure that a net contribution toward the costs of college is obtained[28].

If the issued must be tried as a part of an initial support order, I will be especially careful to demonstrate, with evidence, the actual costs of college and any reduction in the household expenses of the custodial parent and why, if there is a credit, it should be minimal. Unfortunately, Reinisch and Litwack decisions were rendered after the record was complete and argued in Justino so that, as usual, hindsight on this issue is 20/20.

On the other hand, when I represent a non custodial parent, of course I will seek all the credit I can obtain for my client, shooting for the maximum. Further, as a number of attorneys have indicated to me, I might even advise against any agreement to contribute toward college when the children are young, although the practical result of Reinisch, Litwack and Justino might be modified sometime in the future, following Burns more closely, whether by legislative action or further appellate decisions, but the necessity of protecting a client who is a non custodial parent requires nothing less.



_________________________________________________

[1] This is confirmed in Law and the Family New York, 2d Ed., Foster, Freed & Brandes, November 1996 Supplement, 2:28, p. 547.
[2] DRL 240(1-b) and FCA 413(1).
[3] DRL 240(1-b)(c)(7) and FCA(1)(c)(7).
[4] It has always seemed to complicate matters.
[5] For the purposes of this article, I am referring to "the child," although most college students, even though they may be unemancipated and in need of support, are young adults.
[6] 203 AD2d 700, 611 NYS2d 928(3d Dept., 1994)see, Guiry v. Guiry, 159 AD2d 556, 557, 552 NYS2d 421; see also, Matter of Healy v. Healy, 190 AD2d 965, 966-967, 594 NYS2d 90, supra), such adjustment or credit is not mandatory, but depends upon the facts and circumstances of the particular case[citation omitted]... 611 NYS2d 930
[7] 611 NYS2d 930
[8] __AD2d__, 657 NYS2d 79(2d Dept., 1996)
[9] 85 NY2d 649, 628 NYS2d 10, 651 NE2d 878(1995).
[10] One of the children was still a high school student.
[11] 657 NYS2d at 79.
[12] 657 NYS2d at 79.
[13] NYLJ, 9/25/97, p. 30, col.1(AD, 2d Dept.)
[14] 215 AD2d 965, 627 NYS2d 465(3d Dept., 1995).
[15] 203 AD2d 700, 611 NYS2d 928(3d Dept., 1994).
[16] 203 AD2d 661, 611 NYS2d 926(3d Dept., 1994).
[17] 611 NYS2d 927.
[18] 159 AD2d 556, 552 NYS2d 421, 59 Ed Law Rep(2d Dept., 1990).
[19] 159 AD2d 557, 552 NYS2d 422.
[20] 119 AD2d 962, 501 NYS2d 224(3d Dept., 1986).
[21] 96 AD2d 534, 464 NYS2d 842(2d Dept., 1983).
[22] 226 AD2d 615, 641 NYS2d 393(2d Dept., 1996).
[23] It is interesting the decision in Reinisch is dated just one week before the decision in Justino and, with one exception, all of the Justices are different.
[24] __AD2d__, 655 NYS2d 613(2d Dept., 1997).
[25] __AD2d__, 649 NYS2d 602(4th Dept., 1996)
[26] 649 NYS2d 603
[27] 649 NYS2d 603
[28] Frankly, I may also play up the point that the non custodial parent may want, in addition to paying child support, to be able to tell his/her child that he/she is separately paying toward part of college. With some non custodial parents, that factor may be very important.


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