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Courts struggle with which parent should pay for private school in divorce

The Virginia Court of Appeals offered guidelines 16 years ago for judges on when a spouse can be forced to pay for a child to attend private school.

But battles over tuition bills have continued in Virginia divorce courts.

When a parent questions the obligation to pay the extra money for private school, judges often have to parse vaguely worded domestic settlement agreements and probe family needs and traditions to make a ruling.

A new opinion from Warren County is the latest case to address the issue. The judge there gave a brief endorsement of public schools, a position in harmony with the standards set out by the appeals court in 1996.

In Sullivan v. Sullivan (VLW 011-8-228), Circuit Judge Dennis L. Hupp was faced with a mother who objected to sharing the cost of sending her 16-year-old daughter to Randolph Macon Academy.

The girl’s attendance at a private school was a point of conflict between the parties. Hupp was sympathetic to the mother’s plea. “The husband insisted on enrolling [the daughter] there over the wife’s objection at a time when the parties were experiencing serious financial difficulties. The public schools were apparently not considered as an option even though they serve the needs of thousands of young people quite well,” Hupp wrote.

The judge ordered only a minimal contribution by the mother to the girl’s education expenses. “A private school education was not a necessity. It was a choice the husband made for his daughter, and he must bear the cost of it for the most part,” Hupp wrote.

The Sullivan opinion is consistent with the direction of Solomond v. Ball, the seminal appeals court case from 1996. In Solomond, the Court of Appeals offered a list of factors for deciding whether a noncustodial parent should be required to contribute for a child’s private school expenses. The factors include the availability of satisfactory public schools, the child’s prior attendance at private school, the child’s special emotional or physical needs, religious training and family tradition.

The mother in Solomond sought to move the couple’s two sons from one private school to a more expensive academy. Even though the mother herself had attended the proposed new school and testified it was “the preferred institution,” the court found no need for the transfer. The Court of Appeals directed the trial court to roll back the father’s support obligation.

While many of the reported decisions involving private school tuition come from the populous areas of Eastern Virginia, one practitioner says it’s also a “big deal” in the Lynchburg area because of the popularity of a private school founded by the late Rev. Jerry Falwell.

Betsy H. Phillips of Rustburg said many parents enroll children at Lynchburg’s Liberty Christian Academy because the school promotes scholarships at Liberty University for those who achieve a certain grade level.

“It’s a gigantic deviation factor in child support,” Phillips said. “Judges are very reluctant to force a child to change school if they’re already enrolled and doing well,” she said.

Guided by the wisdom of Solomond, Virginia judges have sought to balance parental values and stability for children with financial realities faced by divorced parents. Here is a quick catalogue of how they have ruled:

  • Where a mother had authority under a prior order to make decisions about the children’s schooling, father did not oppose the choice of a parochial school, and father presented no evidence that the school was not in the child’s best interests, the trial court did not err in adding private tuition to the father’s child support obligation, the Court of Appeals held in 1997. Newland v. Newland, VLW 097-7-267.
  • Where the parties’ contract clearly required the father to pay only for a private institution deemed suitable and approved by both parents, the father could not be required to pay for his daughter’s tuition at Rice University, even though he agreed Rice was an appropriate school, the Court of Appeals said in 1997. Eissler v. Stange, VLW 097-7-160.
  • In another 1997 opinion, the Court of Appeals decided a father’s contention that he could no longer afford to send his children to private school, without more, failed to relieve him of his obligation to cover half of the school bills. The children had attended private schools throughout the parents’ marriage and were in the middle of the school year when the father sought a transfer to public schools. Even though the trial court had come to the same conclusion, however, the appeals court remanded the case with instructions that the trial judge provide written findings to support his order. Wheaton v. Wheaton, VLW 097-7-275.
  • Where the couple’s high school-age children had attended a private Christian school almost all of their academic careers, there was a demonstrated need for them to remain in that school, and where the parents had the ability to pay the bills, a circuit court judge refused to order the children removed from the school at the father’s request. The decision came in 1999 in a Caroline County case. Ratcliffe v. Ratcliffe, VLW 099-8-179.
  • A trial court rejected a mother’s bid for child support payments in excess of the statutory guidelines in light of the 13-year-old daughter’s enrollment in private school, finding the mother’s contributions to the marriage were an integral part of the couple’s lifestyle, which included private school for their offspring. The 2000 ruling came from Richmond Circuit Court in Hargrave v. Wienckowski, VLW 001-8-017.
  • Where a couple’s son was having troubles in public school that were evidently resolved with enrollment at a private military school, and the trial judge weighed the Solomond factors to decide the father should pay extra for the private education, the Court of Appeals affirmed the decision in 2001. Not only were the father’s appeal arguments procedurally barred, the record reflected no reason to invoke the good cause or ends-of-justice exceptions, the court found in Dick v. Dick, VLW 001-7-569.
  • The Court of Appeals made it clear in 2002 that private school tuition is not considered a child care expense under the statutory guidelines in a case where the mother unilaterally enrolled the couple’s two children in Alexandria’s Bishop Ireton High School. Before their split, the couple had not sent either of their children to a private school, and the mother enrolled the children at Bishop Ireton without the father’s consent. The court remanded the case for recalculation of the father’s support obligation in Newland v. Newland, VLW 002-7-129.
  • Where a settlement agreement required the father to pay if the mother chose to send their child to a private school “subject to husband’s approval of such school which approval shall not be unreasonably withheld,” a Fairfax County circuit judge held the father was on the hook for secondary school and college tuition payments. That language did not give father a “veto” power, the judge found in Rosen v. Smith, VLW 002-8-250.
  • Even though the daughter had attended private school from kindergarten to grade three, a Chesterfield County circuit judge refused to break from the guidelines to order the father to help pay the private tuition. The judge found no family tradition for private schools, no special needs of the child, and no lack of satisfactory public schools in the 2003 case of Woodward v. Woodward, VLW 003-8-174.
  • A father could not escape his tuition obligation where he signed an agreement to pay half of the “educational costs” of his minor children, where he was aware the children were in private school at the time of the divorce and afterwards and where he failed to show inability to pay. The 2003 decision in Chesterfield County Circuit Court came in Brewerton v. O’Meara, VLW 003-7-464.
  • The Court of Appeals affirmed an order for a father to pay private school tuition in 2004 where the parties had agreed before their split that their daughter would attend private school and where the daughter had begun class for a new school year when the father signed an agreement to cover tuition. Owata v. Owata, VLW 004-7-193.
  • Even though the mother contended transferring to public school would disrupt the children’s education, the Court of Appeals found no support for that claim. The wife also failed to muster evidence to show a need – educational, emotional or developmental – to continue private education. The trial court’s refusal to deviate from the support guidelines to include the cost of private school was affirmed in the 2006 case of Lesesne v. Zablocki, VLW 006-7-002.
  • Lack of progress at a private school was a motivating factor for a Richmond circuit judge in a 2006. Where the mother and father clashed over whether a private Richmond school or public school programs in Tennessee would be best for a struggling 10-year-old, the judge looked to both the “unremarkable” progress the boy was making in the private school and at the couple’s tight finances. The decision awarded physical custody of the boy to the father in Tennessee in Beaty v. Beaty, VLW 007-8-025.
  • Finances were not an issue in a 2007 Loudoun County case, but the parents disagreed on a private daycare program. The father wanted to withdraw his son from Willow Montessori School because of a dispute over summer tuition, lack of transportation, and disapproval of the current program. The judge found the son was “doing very well” at Willow and the mother’s schedule allowed her to provide transportation. The judge found a “demonstrated need” for the child to continue at Willow in Stevens v. Stevens, VLW 007-8-113.
  • Where a settlement agreement referenced only a Montessori school without any other agreement for private school expenses, the Court of Appeals in August affirmed a trial court’s refusal to order tuition payments for other private schools. With only a written statement of facts, and no transcript, the record was deemed insufficient to consider the mother’s claim that it was in the child’s best interest to change schools. Lewis v. Bailey, VLW 011-7-260.

VLW 011-8-228

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