Virginia Lawyers Weekly VA Lawyers Weekly
A divorcing father’s unilateral decision to use a marital investment account to pay for his adult son’s master’s program was properly considered waste of the marital assets, the Court of Appeals of Virginia has ruled.
A Fairfax County circuit judge reasonably concluded the tuition payments were the father’s bid to polish his relationship with his son and unrelated to his failing marriage, a unanimous appeals court panel said.
The court’s ruling broke with prior approval of findings that spending on college education of children was not considered waste. The three-judge panel said there has never been a per se rule about child tuition payments and the facts justified a different result in this case.
The panel’s Feb. 27 unpublished opinion is Hvozdovic v. McGuire (VLW 018-7-044).
Mother raised children after split
The couple married on Valentine’s Day 1988 and had two children. The parties separated in 2002 when the children were 13 and 10. The husband moved out a few months later. The wife kept custody of the children and the husband had only limited visitation with his son and daughter.
A separation agreement did not address payment for post-secondary education of the children, but it did specify that the parties would have equal roles in major decisions about the children, including their education.
The son obtained a bachelor’s degree in 2015 and then embarked on a two-year master’s program in student advisement. The husband paid tuition, room-and-board and other living expenses for the son with money from stock acquired through his work in satellite communications. The husband did not ask the wife if he could withdraw the money for that purpose.
Fairfax County Circuit Judge Bruce D. White viewed the post-graduate expenses as meeting “a paternal purpose as opposed to a marital purpose.” He deemed the expenses to be waste.
Fact-driven analysis
The husband claimed at least a portion of the account was acquired from stock he owned prior to the marriage, but he was unable to nail down the value of the stock at key intervals to allow calculation of a separate property value, the Court of Appeals said. The court affirmed White’s classification of the stock as marital property.
The same analysis applied to several other accounts owned by the couple.
Regardless, the husband contended he should not be penalized for using the couple’s assets to pay for the son’s post-grad education. He cited prior Court of Appeals rulings.
“Although we have affirmed the decisions of trial courts finding that payment of an adult child’s college expenses was not waste in those cases …, we have not held that, as a matter of law, such payments are never waste,” wrote Judge Wesley G. Russell Jr. for the court. Other panel members were Chief Judge Glen A. Huff and Judge Rossie D. Alston Jr.
Instead, the determination is a “fact-specific question committed to the discretion of the trial court,” the judges said.
The court noted parents do not have a legal obligation to pay for children’s post-secondary education. And while this couple’s separation agreement called for input on education decisions from both parents, the husband unilaterally decided to use marital assets to make the tuition payments.
The appeals court presumed the trial judge took other facts into account: The wife bore the burden of raising the children with the husband largely absent after the couple’s separation. Most of the education payments were made more than a decade after the effective end of the marriage.
Considered with other evidence, the court said a reasonable conclusion was that the husband’s tuition payments were an attempt to improve his relationship with his son for the husband’s own benefit, not for a purpose related to the marriage.
The appeals court affirmed White’s judgement in all respects.
Both parties asked for attorneys’ fees on appeal. The appeals court denied both requests.
The husband was represented by Brian M. Hirsch of Reston. The wife’s counsel on appeal was Lavanya K. Carrithers, also of Reston. The wife’s trial counsel was Jennifer M. Guida of Potomac Falls.
Updated March 12 to note Guida’s role as trial counsel.
