Danielle M. Donnelly v. Christopher Donnelly (2012)

MEMORANDUM OF DECISION RE POST–MAJORITY EDUCATIONAL SUPPORT

FACTS

This is an action for dissolution of marriage.   The parties are each represented by counsel.   The plaintiff, Danielle Donnelly, and the defendant, Christopher Donnelly, were married on October 27, 2007.   The plaintiff and the defendant have one child together, Jordan Donnelly, who was born on September 5, 2008.   The plaintiff filed for divorce on January 27, 2011.   A final hearing for the dissolution was held on March 16, 2012.   At the hearing, where each of the parties testified, the parties agreed on all issues except post-majority educational support.   The defendant opposed the court retaining jurisdiction over a future filing for an educational support order and argued that General Statutes § 46b–56c is unconstitutional under the equal protection clause of the Connecticut constitution.   The court ordered the parties to submit briefs regarding the constitutionality of § 46b–56c.   The defendant filed a brief on April 19, 2012, and the plaintiff filed a brief on April 23, 2012.   The court heard oral argument on June 7, 2012, and reserved decision on the issue of post-majority educational support.

DISCUSSION

General Statutes § 46b–56c, entitled “Educational support orders,” provides in relevant part:  “(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction.   An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age. (b)(1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date.¹

Section § 46b–56c(c) provides:  “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 and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.”

At the outset, the court will address whether § 46b–56c(c) must be satisfied at this stage in the proceedings.   The defendant has argued that, had the family remained intact, the parents would not have provided their child with post-majority educational support.   At the March 16, 2012 hearing, the defendant testified that many individuals today pay for their own education, he paid for his own college, the plaintiff did not attend college and that the parties can work out the issue on their own in the future.   For these reasons, the defendant argues that the court should not retain jurisdiction to enter a future award for post-majority educational support pursuant to § 46b–56c.

“[P]rior to entering a college support order, a trial court [must] make a finding that it is more likely than not the parties would have provided support for college had the family remained intact.”   A. Rutkin, S. Oldham & K. Hogan, 8 Connecticut Practice Series:  Family Law and Practice with Forms (2010) § 38:33, p. 345–46.  “Once that threshold is met, the entry of a college-support order does not automatically follow.”  Id., 346.   Rather, the six criteria listed previously must be applied, which includes inquiry into the parents' income, the child's need for support, the availability of financial aid, the child's academic record and the child's commitment to higher education.  Id. These questions clearly cannot be answered in the present case until a later date, as the child is currently three years old.   The court need not presently determine whether a college support order is appropriate in this case.   Instead, the court must determine whether jurisdiction should be retained to preserve the parties' ability to file a future motion.   See, e.g., Racsko v. Racsko, 91 Conn.App. 315, 325, 881 A.2d 460 (2005) (“In light of the ages of the children, who were five and seven at the time of the dissolution, it was reasonable for the court to retain jurisdiction over the issue of their college expenses to determine at a later time the responsibility of each party with respect thereto”).   While the defendant's testimony may become relevant if a future motion for educational support is filed, the issue currently before the court is simply whether jurisdiction should be retained.   Accordingly, the court will retain jurisdiction to enter an educational support order in the event that one of the parties files a proper motion under § 46b–56c in the future.

The defendant next argues that § 46b–56c violates the equal protection clause of the Connecticut constitution.²  “Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides:  ‘No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.’   As a general matter, [the Connecticut Supreme Court] has interpreted the state constitution's equal protection clause to have a like meaning and [to] impose similar constitutional limitations as the federal equal protection clause.”   (Internal quotation marks omitted.)  Markley v. Dept. of Public Utility Control, 301 Conn. 56, 68, 23 A.3d 668 (2011).

“To prevail on an equal protection claim, a plaintiff first must establish that the state is affording different treatment to similarly situated groups of individuals.”  (Internal quotation marks omitted.)  Id. The defendant argues that there are two separate sets of classifications created by § 46b–56c:  (1) divorced and unmarried parents of adult children versus intact parents of adult children, and (2) adult children of divorced or unmarried parents versus adult children of intact parents.   The plaintiff counters that divorced parents, by nature of their act of divorcing, place themselves in a different class than parents in intact marriages.   While there may be merit to the plaintiff's argument,³ the court will assume, without deciding, that the threshold inquiry of similarly situated people being treated differently is met as to at least one of these classifications.

The court must next determine which level of scrutiny to apply.   In his brief, the defendant has not argued that the court should apply a level of scrutiny higher than rational basis review.   Since there is no suspect classification or fundamental right ⁴ implicated, the court will review § 46b–56c under the rational basis standard.⁵

“Legislative classifications that are not drawn along suspect lines and that do not burden fundamental rights are reviewed under the deferential rational basis standard ․ Under rational basis review, the [e]qual [p]rotection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification ․ the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker ․ and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational ․ Further, the [e]qual [p]rotection [c]lause does not demand for purposes of rational basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification ․ [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature ․ [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ․ To succeed, the party challenging the legislation must negative every conceivable basis which might support it.”  (Citations omitted;  internal quotation marks omitted.)  Keane v. Fischetti, 300 Conn. 395, 406, 13 A.3d 1089 (2011).

The defendant argues that there is no rational basis for the classifications created by § 46b–56c.   In doing so, the defendant urges the court to adopt the position of the Pennsylvania Supreme Court in Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995).   In Curtis, the court struck down a similar statute as unconstitutional under the equal protection clause of the federal constitution.  Id., 260.   After stating that the statute “classifies young adults according to the marital status of their parents” and that rational basis review applies, the court concluded that it can conceive of no rational reason why those similarly situated with respect to needing funds for college education, should be treated unequally.”  Id., 258–60.   In doing so, the court rejected the appellant's arguments that there should be “deference to the Commonwealth's strong interest in protecting the intact marital family unit from governmental interference,” and that “the legislature may have determined that children in non-intact or non-marital families require educational advantages to overcome disadvantages attendant to the lack of an intact marital family.”  Id., 258.

The majority of jurisdictions have reached the opposite result than that expressed in Curtis, concluding that post-majority educational support does not violate equal protection.   For example, in LeClair v. LeClair, 137 N.H. 213, 225, 624 A.2d 1350 (1993), the New Hampshire Supreme Court observed that the state “has the dual legitimate interests of promoting higher education for its citizens, and of extending protections to children of divorce to ensure that they are not deprived of opportunities they otherwise would have received had their parents not divorced.  [The educational support statutes] are rationally related to protecting these interests, and do so in a manner that is neither arbitrary nor without reasonable justification ․ These statutes do not require the superior court to order college expenses in all cases.   Rather, these statutes allow the superior court, in its sound discretion, to award reasonable college expenses of adult children under the proper circumstances.   We, therefore, hold that [the statutes] do not violate equal protection under our State Constitution.”  (Citation omitted.)  Id.

Further, in McLeod v. Starnes, 396 S.C. 647, 657, 723 S.E.2d 198 (2012), the South Carolina Supreme Court found the relevant classification to be between divorced parents and nondivorced parents.   The court held that “requiring a parent to pay, as an incident of child support, for post-secondary education under ․ appropriate and limited circumstances ․ is rationally related to the State's interest.   While it is certainly true that not all married couples send their children to college, that does not detract from the State's interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents.   Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced.   It is of no moment that not every married parent sends his children to college or that not every divorced parent refuses to do so.   The tenants of rational basis review under equal protection do not require such exacting precision in the decision to create a classification and its effect.”  Id., 658.

Several other jurisdictions have articulated similar reasoning to that expressed in LeClair and McLeod.   See, e.g., In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980) (“[W]e find the state has a legitimate interest in promoting higher education for its citizens.  [The educational support statute] is rationally related to protecting that interest and does so in a manner that is neither arbitrary nor unreasonable”);  Childers v. Childers, 89 Wn.2d 592, 604, 575 P.2d 201 (1978) (“Even if the legislation does create a classification, it rests upon a reasonable basis ․ The irremediable disadvantages to children whose parents have divorced are great enough.   To minimize them, when possible, is certainly a legitimate governmental interest”);  see also McGinley v. McGinley, 172 Ore.App. 717, 719–35, 19 P.3d 954, review denied, 332 Ore. 305, 27 P.3d 1045 (2001) (holding that educational support statute does not violate equal protection);  Kujawinski v. Kujawinski, 71 Ill.2d 563, 578–82, 376 N.E.2d 1382 (1978) (same);  but see Grapin v. Grapin, 450 So.2d 853, 854–55 (Fla.1984) (“While most parents willingly assist their adult children in obtaining a higher education that is increasingly necessary in today's fast-changing world, any duty to do so is a moral rather than a legal one ․ It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose”).

This court agrees with the jurisdictions that have upheld similar post-majority educational support statutes facing equal protection challenges.   A strong dissent filed in Curtis is illustrative:  “It has ․ been widely acknowledged that among the negative effects of divorce on children are those which concern higher education ․ Courts faced with [similar] cases ․ have also noted, over and over again, that in divorce, the normative rules of behavior may no longer apply ․ Whether because they lose concern for their children's welfare, or out of animosity toward the custodial parent, non-custodial parents frequently become reluctant to provide financial support for any purpose, but are particularly determined to avoid the costs of a college education ․ The courts addressing the issue have uniformly decided that equal protection is not offended by an attempt to equalize the disparate situation faced by children of divorce.”  (Citations omitted.)  Curtis v. Kline, supra, 542 Pa. 262–63 (Montemuro, J., dissenting).   The promotion of higher education and the protections afforded to children of divorced parents, who are less likely to receive financial support for college education than children of intact parents, are certainly legitimate government interests.   Moreover, the proposed classifications created by § 46b–56c are rationally related to these legitimate government interests, especially in light of § 46b–56c(c)'s limitation that a court can enter an educational support order only where it finds “as a matter of fact that it is more likely than not that the parents would have provided support ․ if the family were intact.”   Accordingly, § 46b–56c does not violate equal protection under the Connecticut constitution.

CONCLUSION

For the foregoing reasons, the court holds that § 46b–56c does not violate the equal protection clause of the Connecticut constitution.   The court will retain jurisdiction to enter an educational support order pursuant to § 46b–56c, and either party may file a motion or petition for such an order at an appropriate time in the future.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. “[C]ourts are permitted to retain jurisdiction over educational support orders.  General Statutes § 46b–56c.”  Racsko v. Racsko, 91 Conn.App. 315, 325, 881 A.2d 460 (2005)..  FN1. “[C]ourts are permitted to retain jurisdiction over educational support orders.  General Statutes § 46b–56c.”  Racsko v. Racsko, 91 Conn.App. 315, 325, 881 A.2d 460 (2005).

FN2. To date, no Connecticut decisions have addressed the constitutionality of § 46b–56c.   In Glenn v. Glenn, 133 Conn.App. 397, 401, 35 A.3d 376 (2012), the plaintiff similarly argued that § 46b–56c was unconstitutional under the equal protection clause of the Connecticut constitution.   Our Appellate Court declined to review the claim, as the plaintiff failed to raise the issue before the trial court.   Id. The court also noted that “[i]n his appellate brief, the plaintiff failed to request review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or the plain error doctrine.”  Id. “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:  (1) the record is adequate to review the alleged claim of error;  (2) the claim is of constitutional magnitude alleging the violation of a fundamental right;  (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial;  and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”  (Internal quotation marks omitted.)   Id., 401 n.4..  FN2. To date, no Connecticut decisions have addressed the constitutionality of § 46b–56c.   In Glenn v. Glenn, 133 Conn.App. 397, 401, 35 A.3d 376 (2012), the plaintiff similarly argued that § 46b–56c was unconstitutional under the equal protection clause of the Connecticut constitution.   Our Appellate Court declined to review the claim, as the plaintiff failed to raise the issue before the trial court.   Id. The court also noted that “[i]n his appellate brief, the plaintiff failed to request review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or the plain error doctrine.”  Id. “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:  (1) the record is adequate to review the alleged claim of error;  (2) the claim is of constitutional magnitude alleging the violation of a fundamental right;  (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial;  and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”  (Internal quotation marks omitted.)   Id., 401 n.4.

FN3. The extent to which the court is potentially involved in the financial responsibilities of divorced parents could mean that divorced parents are not similarly situated to intact parents.   Cf. Curtis v. Kline, 542 Pa. 249, 265, 666 A.2d 265 (1995) (Montemuro, J., dissenting) (In divorced families, “[t]he court has ․ already become involved to the extent of entering an order, or there exists another legal mechanism, e.g., separation agreement, through which enforcement can be accomplished and contribution monitored.   In intact families, absent abuse or neglect, no such initial intervention has occurred, and the court has no forum in which to enforce a duty imposed on these parents”)..  FN3. The extent to which the court is potentially involved in the financial responsibilities of divorced parents could mean that divorced parents are not similarly situated to intact parents.   Cf. Curtis v. Kline, 542 Pa. 249, 265, 666 A.2d 265 (1995) (Montemuro, J., dissenting) (In divorced families, “[t]he court has ․ already become involved to the extent of entering an order, or there exists another legal mechanism, e.g., separation agreement, through which enforcement can be accomplished and contribution monitored.   In intact families, absent abuse or neglect, no such initial intervention has occurred, and the court has no forum in which to enforce a duty imposed on these parents”).

FN4. In his brief, the defendant occasionally refers to the “fundamental right” parents have in choosing to contribute financially to the endeavors of their adult children.   The defendant does not argue, however, that the “fundamental” nature of this right triggers a level of scrutiny higher than rational basis review.   Moreover, other jurisdictions have found that no fundamental right is implicated in these circumstances.   See, e.g., In re Marriage of Kohring, 999 S.W.2d 228, 232–33 (Mo.1999) (finding “no fundamental right to avoid providing support for ․ children past age eighteen”);  Neudecker v. Neudecker, 577 N.E.2d 960, 962 (Ind.1991) ( “The expenses of college are not unlike those of orthodontia, music lessons, summer camp, and various other optional undertakings within the discretion of married parents but subject to compulsory payment by inclusion in a child support order in the event of dissolution.   The statutes which authorize such orders do not infringe upon fundamental child-rearing rights”)..  FN4. In his brief, the defendant occasionally refers to the “fundamental right” parents have in choosing to contribute financially to the endeavors of their adult children.   The defendant does not argue, however, that the “fundamental” nature of this right triggers a level of scrutiny higher than rational basis review.   Moreover, other jurisdictions have found that no fundamental right is implicated in these circumstances.   See, e.g., In re Marriage of Kohring, 999 S.W.2d 228, 232–33 (Mo.1999) (finding “no fundamental right to avoid providing support for ․ children past age eighteen”);  Neudecker v. Neudecker, 577 N.E.2d 960, 962 (Ind.1991) ( “The expenses of college are not unlike those of orthodontia, music lessons, summer camp, and various other optional undertakings within the discretion of married parents but subject to compulsory payment by inclusion in a child support order in the event of dissolution.   The statutes which authorize such orders do not infringe upon fundamental child-rearing rights”).

FN5. At oral argument, the defendant briefly argued that intermediate scrutiny should apply.   The defendant did not, however, cite any authority or make any compelling arguments in support of this proposition.   The court therefore finds this argument unpersuasive and declines to apply intermediate scrutiny in the present case..  FN5. At oral argument, the defendant briefly argued that intermediate scrutiny should apply.   The defendant did not, however, cite any authority or make any compelling arguments in support of this proposition.   The court therefore finds this argument unpersuasive and declines to apply intermediate scrutiny in the present case.

Nazzaro, John J., J.