College

“Agreed upon Educational Expenses” and the Price of Silence.  Because “agreed upon expenses” recurs so frequently in our agreements, this recent case from the Appeals Court should be of great interest.  The separation agreement, incorporated into a California divorce judgment and registered in Massachusetts, provided that each party would pay one-half of all agreed-upon educational expenses.  At the evidentiary hearing on the mother’s complaint for contempt, the father admitted that no one prevented him from participating in the child’s college application process. He also never objected to the child’s decision to apply to, accept, or attend the college. In addition, he had ample resources (over $5 million) to pay for the child’s private college education. Consequently, the Probate and Family Court found that the father’s awareness, acquiescence, and ability to pay, along with his current wife’s active assistance in the college application process, was sufficient to constitute his agreement to the child’s college choice and its associated expenses which finding the appellate court affirmed.   Two additional matters, secondary to our purpose here, merit some attention.  The Probate and Family Court found father in contempt and awarded the wife counsel fees. However, the Appeals Court found that the expense provision was not sufficiently “clear and unequivocal” to warrant a contempt finding.  Further, although the counsel fees award was premised on the contempt, the Appeals Court upheld it, pointing out both that the agreement authorized such an award and that the judge has discretion under G.L. c.208 s.38 to award such fees.  Cooper v. Keto, 83 Mass. App. Ct. 798, (June 26, 2013)
 
College Expenses Must be “Reasonable.”  A merged provision in a separation agreement purportedly required each parent to pay one-half of college education expenses.   Under the agreement, mother had physical custody and the parties had shared legal custody of their daughter.  Years later, the daughter, without input from the father, enrolled at a private university where the cost of her first year, after grants, was $34,000.  Mother looked to father for $17,000, father refused to pay, and mother brought a contempt action.  The Probate Court held the father responsible for $7,800 — finding that the school was financially “out of reach” for the father.  On mother’s appeal, the appellate court construed the agreement to require each party to pay half of the “reasonable” college expenses, implying a limiting condition not explicit in the agreement.  Further, in remanding the case to the Probate Court for a determination of “reasonable college expenses,” the Appeals Court set forth several factors for the court to consider; among them, financial resources, cost, programs at the school, and the child’s scholastic aptitude.  Also relevant, according to the Court, is “the extent to which [a party] .  .  .  may have been excluded from the college decision-making process.”  The court would also consider the extent to which a parent has “sat on his or her right to intervene  .  .  .  until the college selection process has been completed.”  Perhaps most interesting in this case was the road not taken.  The Appeals Court could have held college expenses at the level of a public university to be presumptively reasonable.  The court, however, did not.  Mandel v. Mandel, 74 Mass.App.Ct. 348 (June 3, 2009)
 
College Expenses – Premature Order.  The Appeals Court vacated an order mandating the parties to contribute equally (in excess of the funds in certain educational trusts) to the college expenses of the children.  Relying on precedent, the Appeal Court held that the order was premature because the children, ages 11, 10 and 6 at the time of the trial, were too young and there were no “special circumstances” warranting such an order.  Although the Appeals Court does not elaborate on the “special circumstances” exception, such cases involve, for example, “children with special needs or profligate parents.”  Lang v. Koon, 61 Mass.App.Ct. 22, 25 (2004), and cases cited therein. Braun v. Braun, 68 Mass.App.Ct. 846 (May 4, 2007)