Shane Mallory v. Paula Mallory (2010)

MEMORANDUM OF DECISION RE MOTION FOR ORDER, POSTJUDGMENT

On June 4, 2010, Paula Mallory filed a Motion requesting that the court enter an order requiring that Shane Mallory pay a proportionate share of their child Lindsey Mallory's post-secondary education.

An evidentiary hearing on the Motion was held on July 6, 2010.   Both parties testified, and were self-represented.   At issue is the dissolution agreement of the parties which was made an order of the court on May 19, 2005.   Paragraph six of said order provides as follows:

Pursuant to Public Act No. 02.128, in the event the parties cannot agree on payment for the post-secondary educational expenses for their children, the court shall reserve jurisdiction to adjudicate each parent's level of contribution to the post-secondary educational expenses of the children.

According to the text of C.G.S. § 46b-53c(c), “the court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.   After making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:

(1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for the commitment of higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.”  (Emphasis added.)  Sander v. Sander, 96 Conn.App. 102, 117-18 (2006).

Thus, as a preliminary matter, the court many not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.   The evidence produced at the hearing is insufficient to allow the court to make such a finding.   The parties offered scant evidence as to this requirement;  in fact, Shane Mallory expressly stated there was never any agreement between the parties on this issue during the marriage.   Paula Mallory did not offer sufficient evidence in rebuttal to said claim.   In addition, even if the court was satisfied that this initial threshold requirement was met, there was insufficient evidence presented by Paula Mallory relevant to the remaining statutory criteria to provide the court with the basis to fashion an order.

For the foregoing reasons, the Motion for Order is denied.

ELPEDIO VITALE, JUDGE

Vitale, Elpedio N., J.