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1995 National Legal Research Group, Inc.


Pursuant to the federal mandate at 42 U.S.C. 667(b)(2) (Supp. 1999), every state has enacted child support guidelines that act as a rebuttable presumption as to the appropriate amount of child support in any case where child support is to be determined. Under each state's guidelines, the court may deviate from the presumptive award when awarding the presumptive amount would be unjust or inappropriate under the circumstances of the case.

One of the most common reasons for a court to deviate from the presumptive award is to provide tuition for private school. In thirty-six states, "special educational needs" is specifically listed as a deviation factor, while most, if not all, other states allow deviation for educational needs under a catchall deviation factor. Laura W. Morgan, Child Support Guidelines: Interpretation and Application 4.05[b] (Supp. 1999).

Certain consistent principles have emerged from the cases in which the court has considered whether to deviate for private school tuition. This article summarizes those principles.


The issue of paying for a child's private school tuition most often arises where a separation agreement requires the parties to share this cost. Courts will not hesitate to enforce such an agreement. E.g., Brooks v. Brooks, No. 03S01-9804-CV-00034 (Tenn. June 1, 1999); Bostick v. Bostick, No. 02A01-9202-CH-00043 (Tenn. Ct. App. Mar. 30, 1993). The situation is much more difficult, however, where there is no written agreement. The guidelines take into consideration the average cost of sending a child through public school, but the guidelines do not take into consideration the cost of private schooling. Laura W. Morgan, Child Support Guidelines: Interpretation and Application 4.05[b] (Supp. 1999).

Most states consider the following four factors in deciding whether to add on to the presumptive award for the costs associated with private schooling. Morgan, supra, 4.05[b] at 4-27 to 4- 30.

First, the most important consideration is whether the child had been enrolled in a private school prior to the divorce. Courts strive to give a child continuity and will most often order the payment of private school tuition where it is merely a continuation of a previously begun course of study. See In re Marriage of Payan, 890 P.2d 264 (Colo. Ct. App. 1995) (particular education needs of children cited in guidelines are not limited to children with learning disabilities but can include private school where children have a history of attending such school); Matthews v. Matthews, 677 So. 2d 323 (Fla. Dist. Ct. App. 1996) (private educational expenses may be ordered where parent has ability to pay and such expenses are in accordance with family's customary standard of living); Crowley v. Crowley, 672 So. 2d 597 (Fla. Dist. Ct. App. 1996) (private education should be awarded where parties had ability to pay, such expenses were in accordance with customary standard of living, and education is in child's best interests); Ugarte v. Ugarte, 608 So. 2d 838 (Fla. Dist. Ct. App. 1992) (children had attended private school during the marriage); Mark v. Mark, 9 Haw. App. 184, 828 P.2d 1291 (1992) (guidelines do not include private education; deviation may be granted where the court considers whether one or both parties had a private education, whether there is an expectation the child continue in private school, and whether the parents can afford private schooling); In re Marriage of Benkendorf, 252 Ill. App. 3d 429, 624 N.E.2d 1241 (1993) (court required father to contribute to minor child's tuition at private school because such was consistent with parties' lifestyle before divorce); Valure v. Valure, 696 So. 2d 685 (La. Ct. App. 1997) (children had always attended private school and father had consented; leaving school would disrupt children's lives); Schulz v. Schulz, 630 So. 2d 847 (La. Ct. App. 1993) (both children attended private school their whole lives); Jones v. Jones, 628 So. 2d 1304 (La. Ct. App. 1993) (children had always attended private school, and father admitted he wished them to attend private school); Widman v. Widman, 619 So. 2d 632 (La. Ct. App. 1993) (private school award was appropriate where children had always attended private school); Witt v. Ristaino, 118 Md. App. 155, 701 A.2d 1227 (1997) (particular needs include child's educational history, including number of years the child has been in private school, child's performance, whether family has tradition of attending private school, whether parents made choice to send child to particular school, any other factor that might exist that would make private school in the child's best interests, and the parents' ability to pay); Leslie v. Leslie, 948 S.W.2d 458 (Mo. Ct. App. 1997); Hoefers v. Jones, 288 N.J. Super. 590, 672 A.2d 1299 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478, 672 A.2d 1177 (App. Div. 1996) (father must continue to pay for private Christian school which children had attended all through marriage; excellent case discussion of fourteen factors to consider in whether to grant deviation for private school expenses); Pellish v. Gerhart, 701 A.2d 594 (Pa. Super. Ct. 1997) (specifically rejecting contention that Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995), which held unconstitutional the statute allowing courts to order support for college expenses, prohibited court from ordering private school expenses); Hurley v. Hurley, 610 A.2d 80 (R.I. 1992) (children were attending private school at time of trial); Wheaton v. Wheaton, No. 1323-96-3 (Va. Ct. App. 1997) (it was permissible to add to award the tuition for private school that children had attended prior to divorce). But see Schmidt v. Schmidt, 949 S.W.2d 117 (Mo. Ct. App. 1997) (child's preference to attend Catholic school did not in and of itself justify deviation, even though child had gone to private elementary school and child merely wished to continue same education as before divorce).

Second, if the parents have demonstrated an expectation that the child would have a private education, by express agreement or otherwise, the court will generally order the payment of private school tuition. See Doe v. Roe, 85 Haw. 151, 938 P.2d 1170 (Ct. App. 1997) (parents had agreed by stipulation); In re Marriage of Alexander, 231 Ill. App. 3d 950, 596 N.E.2d 1335 (1992) (court properly ordered father to pay for son's private Catholic high school where the court considered the preferences and expectations of the parents and the educational needs of the child); Olds v. Olds, 531 N.E.2d 1219 (Ind. Ct. App. 1988) (father ordered to pay for children's education at Lutheran school);Stefanowitz v. Stefanowitz, 586 So. 2d 460 (Fla. Dist. Ct. App. 1991) (customary standard of living was appropriate consideration in deciding whether to order private school expenses); Luskin v. Luskin, 492 So. 2d 783 (Fla. Dist. Ct. App. 1986) (private school was in accordance with family's customary standard of living); Pellerin v. Pellerin, 715 So. 2d 617 (La. Ct. App. 1998); Jones v. Jones, 628 So. 2d 1304 (La. Ct. App. 1993) (children had always attended private school, and father admitted he wished them to attend private school); In re Marriage of Glueck, 913 S.W.2d 951 (Mo. Ct. App. 1996) (while private school may be a valid deviation factor, it was not an abuse of discretion not to deviate, where custodial mother agreed she would bear cost of school and she was earning more than father); Friedman v. Friedman, 216 A.D.2d 204, 629 N.Y.S.2d 221 (1995) (payment for religious school was warranted considering the role of religious school in the children's and family's life); Valente v. Valente, 114 A.D.2d 951, 495 N.Y.S.2d 215 (1985) (father was properly ordered to pay for parochial school where children had gone to religious school from kindergarten through their teens, and religious values and education were a part of the family's life and structure); McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238 (1992) (private school expenses paid by father resulted from a desire of both parents that child attend private school; father would be partly credited with payments made); cf. Cwiklinsk v. Cwiklinsk, 115 A.D.2d 951, 497 N.Y.S.2d 529 (1985) (improper to require father to pay for private school where parties had agreed child would attend public school). But see In re Marriage of Dawson, 143 Or. App. 35, 919 P.2d 517 (1996) (where there is no showing of special needs for child, parent can withdraw consent for private school). One piece of evidence that tends to prove that the parents tacitly agreed or understood that the child would attend private school is the fact that one or both parents attended private school. See Mark v. Mark, 9 Haw. App. 184, 828 P.2d 1291 (1992); Howard v. Howard, 186 A.D.2d 132, 587 N.Y.S.2d 950 (1992); Hurley v. Hurley, 610 A.2d 80 (R.I. 1992) (both parents had attended private school).

Third, a court will always deem it to be in the best interests of the child to order the payment of private school tuition if the child has a special need that the public school simply cannot accommodate. SeeStefanowitz v. Stefanowitz, 586 So. 2d 460 (Fla. Dist. Ct. App. 1991) (deviation may be had for private schooling where it is in best interests of child); In re Marriage of Schmidt, 292 Ill. App. 3d 229, 684 N.E.2d 1355 (1997); Quillen v. Quillen, 659 N.E.2d 566 (Ind. Ct. App. 1995) (private education was reasonable and necessary given facts of case); Serrate v. Serrate, 684 So. 2d 1128 (La. Ct. App. 1996) (private school tuition was necessary where children moved and private school most closely approximated previous school); Campbell v. Campbell, 682 So. 2d 312 (La. Ct. App. 1996) (children had particular educational needs that public school could not satisfy); Bertrand v. Bertrand, 637 So. 2d 531 (La. Ct. App. 1993) (deviation may be had for private school expenses on presentation of special evidence concerning need for such); Dempsey v. Stevens, 611 So. 2d 815 (La. Ct. App. 1992) (private school was authorized by court because such was in the child's best interests); Leslie v. Leslie, 948 S.W.2d 458 (Mo. Ct. App. 1997) (adding on private school costs because school will meet particular needs of children is permissible; school need not be "essential to child's welfare,'' as noncustodial parent argued); Prystay v. Avildsen, 251 A.D.2d 87, 673 N.Y.S.2d 679 (1998) (military school was in the child's best interests); Allen L. v. Myrna L., 224 A.D.2d 495, 638 N.Y.S.2d 168 (1996) (upward modification of support to pay for private school where child needed such education was warranted); Howard v. Howard, 186 A.D.2d 132, 587 N.Y.S.2d 950 (1992) (child's abilities were a proper consideration); Litmans v. Litmans, 449 Pa. Super. 209, 673 A.2d 377 (1996) (court will consider whether child will benefit from private school and if it is consistent with predivorce standard of living); McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238 (1992) (court, in fairness, would deduct from imputed income amount father voluntarily paid for children's private school tuition where he paid such expenses out of understanding of the parties); In re Marriage of Vander Veen, 62 Wash. App. 861, 815 P.2d 843 (1991) (private education expenses may be awarded on finding that removal of children from school would be detrimental). Consequently, where there is no showing that private school is in the best interests of the child or will particularly suit the child's needs, it is an abuse of discretion to order the payment of private school tuition. See Patrick K.R. v. James M.R., No. CN91-8306 (Del. Fam. Ct. 1992) (although children had been enrolled in private school with the consent of both the parties, the court allowed the father to discontinue tuition payments, absent an overwhelming and compelling special need for private edu-cation); Dachsteiner v. Dachsteiner, 894 S.W.2d 248 (Mo. Ct. App. 1995) (where there was no evidence of child's need to attend private school other than mother's generalized statement that public school was a "jungle,'' trial court need not enter award for education); Schaffer v. Haynes, 847 S.W.2d 814 (Mo. Ct. App. 1992) (father would no longer have to pay for private school where mother testified she was happy with the public schools and wanted to stay in the system); Lannen v. Lannen, 231 A.D.2d 931, 647 N.Y.S.2d 635 (1996) (father did not have to pay for private school; parents were both graduates of public school and father could not afford it; fact that child would be more comfortable in private school was not sufficient); Rucks v. Nugent, 191 A.D.2d 786, 594 N.Y.S.2d 379 (1993) (private school costs were not warranted where wife did not show that child had special education needs or that the public schools were inadequate); Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157 (1996) (transfer from one private school to another more expensive private school does not constitute change in circumstances warranting upward modification of support); In re Marriage of Stern, 57 Wash. App. 707, 789 P.2d 807, review denied, 115 Wash. 2d 1013, 797 P.2d 513 (1990) (where acceptable public schools are available and there is no showing of special circumstances justifying the need for private school education, the noncustodial parent should not be obligated to pay for the private education of his or her children).

Fourth and finally, the court must find that the parties can afford to send the child to private school. See Pollow v. Pollow, 712 So. 2d 1235 (Fla. Dist. Ct. App. 1998); Stefanowitz v. Stefanowitz, 586 So. 2d 460 (Fla. Dist. Ct. App. 1991); Periquet-Febres v. Febres, 659 N.E.2d 602 (Ind. Ct. App. 1995) (it is error to award private educational expenses where there are no resources available); Widman v. Widman, 619 So. 2d 632 (La. Ct. App. 1993) (private school award is appropriate where income is sufficient); Busken v. Busken, 878 S.W.2d 78 (Mo. Ct. App. 1994) (cost of private school education is proper factor in assessing award); In re Marriage of Manning, 871 S.W.2d 108 (Mo. Ct. App. 1994) (private school must be within the financial means of the person providing support); Howard v. Howard, 186 A.D.2d 132, 587 N.Y.S.2d 950 (1992); Cuthbert S. v. Linda S., 161 Misc. 2d 372, 613 N.Y.S.2d 801 (Fam. Ct. 1994) (court would order private school tuition only to finish out year and not thereafter, where funds were to come from public assistance); Pellish v. Gerhart, 701 A.2d 594 (Pa. Super. Ct. 1997).

When private education costs are awarded, the court should award such expenses only to the extent they are actually incurred and not paid from another source. In re Marriage of Winnie, 109 Or. App. 304, 818 P.2d 1292 (1991) (child's scholarships, grants, and summer earnings should be deducted from the cost of his or her education in determining the amount to be paid); see also Brennan v. Brennan, 230 A.D.2d 700, 645 N.Y.S.2d 876 (1996) (when court allows deviation for private school, cost should be apportioned between parents according to their respective incomes).

These same considerations can justify a deviation from the presumptive award for music lessons or other cultural activities. In re Marriage of Laughlin, 932 P.2d 858 (Colo. Ct. App. 1997) (extra $180 for ice skating lessons where daughter was competitive skater was appropriate); Stock v. Stock, 693 So. 2d 1080 (Fla. Dist. Ct. App. 1997) (error to grant deviation for children's participation in riding activities where parents could not afford it); In re Marriage of Florence, 260 Ill. App. 3d 116, 632 N.E.2d 681 (1994) (court ordered father to pay $250 toward purchase of clarinet); Valure v. Valure, 696 So. 2d 685 (La. Ct. App. 1997) (no award for dancing lessons); Elliott v. Elliott, 920 S.W.2d 570 (Mo. Ct. App. 1996) (dance and piano lessons, private school warranted); Wacholder v. Wacholder, 188 A.D.2d 130, 593 N.Y.S.2d 896 (1993) (child's figure skating expenses, where child had special aptitude and was nationally ranked skater, ordered; Holland v. Holland, 444 Pa. Super. 251, 663 A.2d 768 (1995) (father properly ordered to pay $455 per month for daughter's equestrian activities, where the trial court determined such were necessary for the child's well-being); Petruska v. Petruska, 200 W. Va. 79, 488 S.E.2d 354 (1996) (husband was not required to pay additional $850 per month for sports, where if family had stayed together he could not afford it). But see Smith v. Smith, 845 S.W.2d 25 (Ky. Ct. App. 1992) (music lessons are not "extraordinary educational expense" justifying deviation from guidelines).

In sum, a good rule of thumb for private education and extracurricular lessons is that a court will not hesitate to deviate if the child would have enjoyed this type of education had the marriage stayed intact, or, in the case of an out-of-wedlock child, if the parents can afford the expense and it is consistent with the parents' lifestyles.

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