Divorce Attorney Nicole K. Levy explores how college contributions are treated differently from child support orders in Massachusetts.
Modifications of divorce and custody judgments can be tricky. A party seeking to modify a judgment must be cautious about that modification becoming too broad, which can result in the scope of the case increasing beyond the intended area. However, defining a modification too narrowly can also cause problems. A party who fails to include all potential areas of modification in his or her complaint can face limitations at trial.
Table of Contents for this Blog:
- Case Background: Separation Agreement Defines College Obligation of Father
- Complaint for Modification: Seeking Contribution from Mother to College
- Intention of the Parties: What Parties Do Not Say in an Agreement Can Matter
- No Material Change in Ability to Pay for College Since 2013…or 2001
- What is the Legal Standard for Modifying College Expenses in Massachusetts?
- Moving Forward: Massachusetts Appellate Courts Must Define the Standard for Modifying College Expense Provisions
Case Background: Separation Agreement Defines College Obligation of Father
This issue arose in Strayton v. Willwerth (2017), an unpublished Massachusetts Appeals Court case. In Strayton, the parties had been divorced in 2001 pursuant to a Separation Agreement that provided that the Mother would have primary custody of the parties’ child, as well as receive child support and alimony. The parties also agreed that the Father would pay all college expenses for the child. Unlike the provisions regarding child support, there was no language in the Separation Agreement that expressly provided for the modification or termination of the Father's obligation to pay for college. However, the Separation Agreement generally provided that all issues affecting the minor child were merged with the judgment of divorce, and therefore modifiable in a future Complaint for Modification.
The Agreement was modified in 2002, terminating alimony, reducing child support, and established the parents’ obligations for payment of the child’s preschool tuition. In 2013, the Agreement was again modified as the child had moved in with the Father. The judgment provided that neither party would pay child support to the other. The child was fifteen years old at this time. No other modifications were made.
Complaint for Modification: Seeking Contribution from Mother to College
In 2014, the Father filed a Complaint for Modification asking the court to order the Mother to contribute equally to the child’s college education. The Father argued that since the time of the divorce - more than twelve years ago – his income had decrease. He also cited that the child was residing with him, and that there was no child support order. The modification case was scheduled for trial in the Essex Probate and Family Court before Hon. Jennifer M.R. Ulwick.
After trial, the judge ordered that each parent contribute 45% towards the child’s college education (with the child responsible for 10%), reasoning that there has been a substantial and material change of circumstances in primary custody and that the Mother was paying no child support, making a contribution to college by the Mother appropriate. The judge further found that both parties had the financial ability to finance the payment of the child’s college costs in a similar manner and that it would be in the child's best interests for the parties to contribute equally to his college education.
The Mother appealed from the judgment and the Appeals Court reversed the trial court judgment. The Appeals Court reviewed this case through two distinct lenses: the intention of the parties and whether there was a material change in circumstance from the most recent judgment, not from the time of divorce.
Intention of the Parties: What Parties Do Not Say in an Agreement Can Matter
The Appeals Court examined the 2013 modification, in which the parties agreed that the Father would have primary physical custody of the child, and that neither party would pay child support. Of particular concern to the Appeals Court seemed to be the fact that the parties had entered an agreement to modify the judgment in March 2013, and that the Father had returned to court on another modification only 18 months later, in November 2014.
The Appeals Court emphasized that the parties could have addressed college expenses in the 2013 agreement, and chose not to:
Here, we cannot say that the judge took into account "the earlier, expressed desires of the parties" when concluding that the 2013 custody change warranted a modification of the father's obligation to pay for college. While the separation agreement expressly provides for the termination of child support upon a change in custody, there is no similar language in the agreement with respect to college expenses. Had the parties intended for a custody change to also trigger a modification of the father's obligation to pay for college, they "easily could have included language" to that effect in the separation agreement. … The parties' conduct in 2013 is consistent with this interpretation. In 2013, when the parties agreed to the custody change, they also agreed that the mother would not pay child support, and they reaffirmed, rather than modified, the college expense provisions despite that college was "on the horizon."
The Appeals Court reviewed other areas of the Separation Agreement, picking out provisions that suggested that the Father’s obligation to pay for college was intended to be more permanent, and less modifiable, than the general child support provisions. Ultimately, the Court found:
[W]hen read together, the relevant provisions of the separation agreement demonstrate that the parties intended for the father to pay for the entirety of the child's college education notwithstanding a change in custody.
From a divorce practitioner’s perspective, some of the Appeals Court’s analysis of the terms of the Separation Agreement seemed somewhat strained. The strongest argument against modifying the college obligation is the simplest: if the parties had intended for the college obligation to be modified upon a change in physical custody, they would have likely addressed this at the time of the 2013 agreement. The Court makes this point, but also appears to give great weight to the life insurance provisions of the Separation Agreement – which indicated Father would carry enough insurance to secure his college obligation – and the absence of specific language in the Separation Agreement stating that a change in primary custody would alter the college obligations.
It is fair to say that many Separation Agreements that are entered in Massachusetts measure life insurance coverage based on the modifiable child support, alimony or college obligations set forth in the Agreement. In Strayton, the life insurance provision could be easily interpreted as permitting Father to reduce or eliminate his life insurance coverage if the college obligation were later modified. Similarly, few (if any) Massachusetts Separation Agreements specifically define the grounds on which child support or college obligations should be modified. In general, Massachusetts Probate and Family Court judges have a degree of latitude in determining what constitutes a change in circumstances.
Again, in Strayton, the Appeals Court is certainly on solid ground when questioning whether the Father should be permitted to modify the college provision less than 18 months after the parties agreed to the change in custody without mentioning the college cost. The Court’s attempt to divine the parties’ intentions about the modifiability of the college provision based on the surrounding language of the Separation Agreement is more problematic, however.
No Material Change in Ability to Pay for College Since 2013…or 2001
Putting aside the intentions of the parties, the Appeals Court also noted that there was not material change in circumstance from the last judgment to warrant a change in the payment of college expenses. The trial judge cited to the change in custody, from the Mother to the Father, as well as the lack of child support payments ordered in making the determination at the trial court level. Since the custody change and child support waiver were specifically effectuated by the modification judgment in 2013, the Court held that that these same agreed-upon changes could not form the basis of Father’s new modification in 2016.
The Court noted:
[The judge did not find any other material change in circumstances upon which a modification of the college expense provisions could be based. The judge instead found that both parties presently "have the financial ability to finance the payment of [the child's] college costs in a similar manner" and that it would be in the child's best interests for the parties to contribute equally to his college education. However, the relevant inquiry when modifying an existing financial obligation is not whether modification is in the child's best interests, but instead, "whether, and to what extent, the parties' financial circumstances have changed since the entry of the prior judgment."
The Court held that the parties’ respective incomes and financial resources had remained consistent between 2013 and 2016. Moreover, the Court went on to explain, the Father’s ability to contribute to college had not greatly diminished since the 2001 Separation Agreement:
[T]he father argues that the change in the parties' financial circumstances should be measured from the time of the 2001 divorce, rather than from the 2013 modification, as the college-related provisions of the separation agreement have never been modified. Even if we were to agree with the father's position, and we do not, we still would discern no basis for modification in the record. The mere fact that the father's income has decreased since the divorce "does not alone compel a modification." Here, the record reflects that the decrease in the father's income has been more than offset by a substantial decrease in his expenses, largely due to the fact that he is no longer obligated to pay $90,000 per year in alimony and child support. Moreover, the father's assets have continued to increase in value since the time of the divorce, from approximately $709,203 in 2001, to $1,288,489 in 2016. Accordingly, there appears to be no material change in the father's overall ability to pay for college. [Internal citations omitted.]
Lastly, the Court specifically objected to the judge’s review of the Mother’s ability to contribute to college based on the financial resources of the Mother’s new husband:
[T]he judge found the parties to be capable of contributing to college in a "similar manner" as they both have chosen to live in single-income households and have "access" to relatively equal assets. However, in so finding, the judge improperly considered the income and assets of the wife's current husband, despite that he has no obligation to support the parties' child. See Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015) (detailed findings are required to justify treating financial contributions from new spouse as source of funds available to support child of prior marriage). Absent her current husband's contributions, the mother's overall financial circumstances have not materially changed since the divorce.
The Court’s multi-pronged opinion seeks out multiple grounds to reverse the Judgment of Modification. Some of the Court’s arguments – such as its critique of the judge including the new husband’s assets in the Mother’s ability to pay for college – are quite persuasive. Other arguments made by the Court, however, are reflective of deeper inconsistencies in the law of college and child support in Massachusetts.
Against this larger backdrop of ambiguity, the tone of indignation and exasperation towards the trial court judge’s decision that permeates the opinion seems misplaced. A trial court judge’s decision is only as sound as the controlling law it is built upon, and the Appeals Court’s record in clarifying the law surrounding the apportionment of college expenses is rather spotty in its own right.
What is the Legal Standard for Modifying College Expenses in Massachusetts?
The Strayton decision follows a spate of recent appellate opinions that have muddied the already murky waters surrounding the modifiability of college payment provisions in Massachusetts. As noted in our blog last year, How College Expenses Affect Child Support in Massachusetts, Massachusetts appellate courts have struggled for decades to define whether college payment obligations are part of child support, merely related to child support, or exist independent of child support. Indeed, it is not clear that the SJC or Appeals Court have ever articulated a clear legal standard for the modification of college expenses.
In last year’s blog, we reviewed the case of McClelland v. McClelland (2017), in which the Appeals Court reversed a trial court judge’s decision to include the cost of college in her judgment of modification of child support on the grounds that college expenses and child support must be treated differently under the law. McCelland and other recent cases have particularly relied on a problematic 2004 case, Purdy v. Colangelo (2004), in which the Court specifically held, “our cases have not addressed the issue whether an order to pay the cost of education is an order modifying a previous [child] support order…” In Purdy, the Appeals Court held that “[w]e need not decide the difficult question whether” college expenses are a component of child support, as defined by G. L. c. 119A, § 13(a). Fourteen years later, it appears that this basic question remains unresolved by the Appeals Court, despite the entry of hundreds of thousands of agreements for college expense in Massachusetts courts in the intervening years.
As it stands, Massachusetts trial court judges still have little idea what legal standard applies to the modification of college expense provisions. This ambiguity is problematic, given how ubiquitous orders for college expenses have become – and how the cost of college has skyrocketed since the early 2000’s, when Purdy was decided. Indeed, in McCelland, the Appeals Court even suggested that Purdy should bar a court from ordering the payment of college expenses most of the time when a Separation Agreement is silent on the issue of college expenses:
In Purdy v. Colangelo (2004), this court held that where the parties’ earlier agreements were silent on the issue of allocation of education costs and neither party had sought modification, “exceptional circumstances would be required” for the judge to issue a discretionary order for such expenses after the child had graduated.
Simply put, the Appeals Court’s perspective in McCelland is wildly out of step with the prevailing attitudes among Probate and Family Court judges, who tend to view college contributions as a duty owed by both parents to a child, rather than a contractual term that like-minded parents can exclude at the expense of their kids. The imposition of a bright line rule providing that parents can simply avoid contributing to their children’s college expenses by ignoring the issue in their Separation Agreement seems unusual, given the broad discretion that Probate and Family Court judges are usually afforded with issues affecting the care and custody of children.
A plain reading of Purdy is that college payment provisions should only be modified in “exceptional circumstances”, which is a far more rigid standard then the material change in circumstances applied to child support. It is difficult to reconcile the Appeals Court’s wildly different legal standards for modifying child support vs. college expenses with the 2017 Child Support Guidelines, which explicitly include the payment of college expenses in the Guidelines themselves.
Notably, the Strayton decision entered on December 8, 2017, three months after the 2017 Guidelines took effect. Because the trial court judgement in Strayton entered in August of 2016, the 2017 Guidelines would not have applied. However, the Appeals Court was certainly aware of the new Guidelines at the time of the decision.
None of this is to say that the Appeals Court reached the wrong decision in Strayton. Given the challenges the Court has faced in its own jurisprudence over the modification of college expenses, however, the tone of the Court’s strident reversal of the trial court judge seems eyebrow-raising.
Moving Forward: Massachusetts Appellate Courts Must Define the Standard for Modifying College Expense Provisions
Orders for the payment of college expenses are more complex than child support for a variety of reasons. Historically, whether or not to order parents to contribute to college has fallen wholly within the discretion of the court, unlike traditional child support, which is controlled by the Massachusetts Child Support Guidelines. Because college contributions are made on behalf of adult children, courts must grapple with how much an adult child should contribute to college compared to his or her parents. Moreover, with the cost of college skyrocketing in recent decades – while family and retirement savings have fallen – judges often struggle to determine how much money that parents of limited means should sacrifice towards college.
Should courts order parents to borrow student loans on behalf of children? Should academically gifted children receive a larger parental contribution to achieve their dreams? Should wealthy parents be ordered to pay for private college? Should provisions for the payment of college be treated more like the division of marital assets or debts – which are not modifiable – due to the huge costs involved?
The 2017 Child Support Guidelines provided Massachusetts parties, attorneys and judges with a measure of structure in the area of college expenses. Now, Massachusetts appellate courts must do their part to advance the law by providing clear legal standards for Probate and Family Court judges to navigate this treacherous issue.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.