Ann D. Schrempf v. Michael Schrempf (2014)

MEMORANDUM OF DECISION

I. Procedural History

This matter comes before the court on the defendant's Motion for Order Pursuant to [46b–56(c) ] (Post Judgment) (# 142), for an educational support order.   The parties were divorced on April 9, 2010, and have three children.   At the time of the dissolution, the parties stipulated that had the marriage remained intact, it is likely that the children would have attended a four-year college or institute of higher learning, and that the parties would have provided support for same.   The parties reserved their right to request an educational support order at a later date.   A hearing was held on November 6, 2013 and December 19, 2013, at which both parties were represented by counsel, and both parties testified.¹  This Memorandum of Decision addresses the eldest child, Connor, born June 19, 1995.²  Both parties seek an educational support order for this academic year, and for the three additional years of Connor's undergraduate college education.

II. Facts

Based upon a careful consideration of all of the evidence, arguments of counsel, proposed orders, and a review of the record, having afforded appropriate weight and credibility to the witnesses and to the evidence, the court finds the following facts by a preponderance of the evidence.

1. The parties' son, Connor, attends the University of Delaware as a freshman.   He has worked hard in college and achieves good grades.   The parties stipulated to the following:  Connor needs support to attend college as he does not have assets or the ability to earn enough income;  the financial aid available to him is set forth in Defendant's Exhibit A;  higher educational expenses are reasonable in light of the child's academic record and financial resources;  the child's preparation, aptitude and commitment to higher education justifies an educational order;  and the child attends and plans to continue as a student at the University of Delaware.   See Court Exhibit 1.

2. The plaintiff receives $104,000 net per year in unallocated support from the defendant.   According to the plaintiff's financial affidavit, her net weekly income is $1,611, her net weekly expenses are $1,573, her total liabilities are $14,031, and the total cash value of her assets is $461,380.   See Plaintiff's Exhibit 3. In addition to supporting herself, the plaintiff contributes to the support of the parties' three children.   There was no evidence that anyone other than the children live with the plaintiff, or that the plaintiff receives financial support from anyone other than the support from the defendant.

3. The defendant earns $208,000 net per year as a physician in his partnership.   He also receives additional quarterly payments in varying amounts from the partnership, of which the plaintiff receives thirty (30%) percent.   According to the defendant's financial affidavit, his net weekly income is $3,342, his weekly expenses are $4,490, his total liabilities are $8,000, and the total cash value of his assets is $807,325.   He lists an auto loan of $113 per week, but testified that the loan is actually a lease, eighty (80%) percent of which is paid for by his partnership.   He also lists lawn service in the amount of $50 per week, child clothing of $104 per week, and $905 per week as unspecified (“other”) expenses.   See Defendant's Exhibit E. In addition to supporting himself, the defendant contributes to the support of his children.   The defendant's fiancée and her daughter live with the defendant, and the defendant contributes to the support of both.   The defendant also receives some financial assistance from his fiancée for household expenses listed on his financial affidavit.

4. During the course of the marriage, the parties funded a college account for each of the children.   As of June 30, 2013, Connor's account contained $76,353.98.   See Plaintiff's Exhibit 9. The judgment, in relevant part, states the following:  “The parties acknowledge and stipulate that had the marriage remained intact it is likely that the children would have attended a four year college or institute of higher learning and they would have provided support for same.   Currently existing college accounts shall be maintained for the benefit of the children's college education.   Pursuant to Connecticut General Statutes (C.G.S.) Section [46b–56c], the parties agree that a motion or petition for educational support order is not being requested at this time, but either party reserves the right to file such a petition at a later date.”

5. In accordance with 46b–56c(d), the parties discussed Connor's choice of the University of Delaware, but the plaintiff did not agree with that choice.   The plaintiff wanted Connor to attend a college or university closer to home, and one which was less expensive than the University of Delaware.

6. The tuition at the University of Delaware is $43,024 per year.   The cost of attending the University of Delaware is reasonable given Connor's academic record and the financial resources available.   The University of Delaware has a program in criminal justice, which is Connor's area of interest.

7. Connor has received financial aid, including grants and scholarships, in the amount of $9,444 for his freshman year.   See Defendant's Exhibit A. The balance due for the year is $33,580;  the balance due for the fall semester is $15,614.   The defendant paid the balance due for the fall semester from Connor's college fund account.   As of July 11, 2013, $21,512 was paid to the University of Delaware.   See Defendant's Exhibit B.

8. There was no evidence that Connor contributed financially to his college education beyond the financial aid he received.   The defendant testified that Connor pays $2,000–2,500 per year in books and other expenses.   Based upon the defendant's testimony, the court finds that Connor is able to contribute $2,500 towards college expenses for each academic year.

9. The total balance due for the 2013–2014 academic year at the University of Delaware, after grants, scholarships and Connor's contribution, is $31,080, or the balance due of $33,580, less Connor's contribution of $2,500.

10. The defendant testified that he doesn't feel he can afford to pay for Connor's college expenses entirely on his own.   He seeks an order that he pay for two-thirds of the college costs remaining after grants, scholarships and Connor's anticipated contribution, and that the plaintiff pay for one-third of the remaining costs.   The defendant's calculation is based on the fact that the plaintiff's income from alimony/support is approximately one-third of the defendant's income from his employment.

11. The plaintiff devoted her married life to raising her children, and did not work outside of the home.   She testified that she is financially unable to help pay for Connor's college costs because her only source of income is the support she receives from the defendant.   The alimony will terminate on October 9, 2017.   She testified that the alimony/support was never intended to pay for college expenses, and that based upon the defendant's salary, it was anticipated at the time of the dissolution that the defendant would pay for college costs of the children.   The judgment and dissolution agreement specifically requested that the court retain jurisdiction for educational support orders;  neither stated an agreement that the defendant would pay for college costs in their entirety.

12. The plaintiff is 50 years old, has a Bachelor's degree in Spanish, and works part-time as a Spanish tutor, earning $20 per hour.   She has worked as a tutor with only one or two students.   In 2012, she was employed part-time at a pre-school, earning $15.50 per hour, and earned total wages and salary for that year of $3,863.

13. The plaintiff was diagnosed with Meniere's disease in 2013, but suspected that the onset began in 2008 when she first experienced vertigo.   She is not on daily medication, and this condition has not prevented her from working outside of the home.

14. The plaintiff has the capacity to earn $20 per hour, and she has time available to work outside of the home on a part-time basis, while still being appropriately available for her teenaged children.

15. At the time of the dissolution, the court ordered the following unallocated support:  “The defendant husband shall pay the plaintiff wife unallocated support per the following:  Commencing on the date of judgment and continuing for a period of ninety (90) months from the date of judgment, the defendant husband shall pay the sum of One Thousand Five Hundred ($1,500.00) Dollars per week.   The defendant husband shall forthwith pay to the plaintiff wife twenty-three (23%) percent of his gross first quarter bonus.   The remaining seventy-seven (77%) percent of the husband's first quarter bonus shall be his solely and the plaintiff wife shall not make any claim to these funds.   In addition, the defendant husband shall pay to the plaintiff wife thirty (30%) percent of his gross bonus payable upon receipt by the defendant husband on a quarterly basis for a period of ninety (90) months.   Should the defendant husband choose to leave his bonus income in the practice, he shall notwithstanding, pay to the plaintiff wife her percentile share.   The defendant husband shall be entitled to earn an additional Thirty Thousand ($30,000.00) Dollars before the plaintiff wife shall be able to seek an upward modification of support.   For Federal and state income tax purposes, the unallocated support shall be deductible to the defendant husband and included as income for the plaintiff wife.   The plaintiff wife shall have a safe harbor to earn up to Thirty Thousand ($30,000.00) Dollars per year before the defendant husband shall have the right to file a motion for downward modification.”

16. The judgment provided that the parties shall share joint legal custody, with no designation of a primary residence.   Each parent contributes to the expenses of the children when the children are in the respective care of each parent.

17. Plaintiff's Exhibit 11, entered as a full exhibit without objection by the defendant, is the 2013–2014 estimated yearly expenses for a full-time undergraduate in-state student at the University of Connecticut at Storrs (“UConn”) in the amount of $23,744.   Pursuant to 46b–56c(f), the court is limited in the total amount it may order the parties to pay by the amount of the UConn cap, or $23,744.

18. In accordance with 46b–56c(e), and based upon the testimony of the parties, the exhibits, and the reasonable inferences drawn from the evidence, the court finds Connor has:  (1) enrolled in an accredited college/university;  (2) actively pursued a course of study commensurate with his vocational goals that constitutes at least one-half the course load determined by the school to constitute full-time enrollment;  (3) maintained good academic standing;  and (4) made available all academic records to both parents.

The court will set forth below additional relevant facts as necessary to its analysis.

III. Discussion

An educational support order pursuant to C.G.S. 46b–56c requires a parent to provide support for a child or children for post-secondary education for up to a total of four full academic years at a college, university or occupational school.³

If the parties stipulate to post-majority education support, and that agreement is made an order of the court, the “necessary provisions” of § 46b–56c must be included in order for the educational support order to be valid and for the trial court to maintain jurisdiction.   See Bock v. Bock, 127 Conn.App. 553, 558, 14 A.3d 479 (2011) (parties' agreements not incorporated as part of original dissolution decree;  agreements not valid educational support orders as they did not contain all necessary provisions mandated by the statute).   See also Kelman v. Kelman, 86 Conn.App. 120, 125–26, 860 A.2d 292 (2004) (trial court exceeded its authority when it failed to include provisions of 46b–56c in educational support order).

On motion or petition of a parent, the court may enter an educational support order at the time of the marital dissolution, legal separation or annulment.   Courts may maintain jurisdiction over the issue of post-secondary education expenses even if the children are young at the time of the dissolution.   See Racsko v. Racsko, 91 Conn.App. 315, 325, 881 A.2d 460 (2005) (reasonable for trial court to retain jurisdiction to determine the responsibility for the future college expenses, even though the plaintiff requested order of lump sum payment toward college expenses, and 46b–81 prohibits retention of jurisdiction over lump sum alimony or division of marital estate).

If a court does not enter an education support order at the time of the dissolution, and the parents have a child who has not reached the age of twenty-three, the trial court must retain jurisdiction in order to enter a post-judgment educational support order.   See Robinson v. Robinson, 86 Conn.App. 719, 726, 862 A.2 326 (2004) (reversing dissolution judgment because the court did not inform the parties that if no educational support order was entered at time of dissolution, no such order may be entered thereafter;  parties did not waive their rights when they were not properly advised).⁴

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 if the family had remained intact.  C.G.S. 46b–56c(c).  Generally, a court must make a finding regarding this intent at the time of the dissolution, and this finding must be expressed, not implied.   However, this intent can be demonstrated by sufficient evidence in the record if the court fails to comply with statutory requirements.   See Sander v. Sander, 96 Conn.App. 102, 118, 899 A.2d 670 (2006) (failure to comply with 46b–56c requirements was harmless error as ample evidence existed in the record to support such a finding).   See also Glenn v. Glenn, 133 Conn.App. 397, 402–03, 35 A.3d 376 (2012) (trial court's failure to make requisite finding was harmless error because there was ample evidence in the record to support such a finding).

In the present case, all of the statutory prerequisites were met.   Having met the statutory prerequisites, pursuant to 46b–56c, the court must consider all relevant circumstances:

(1) The parents' income, assets and other obligations, including to other dependents;  (2) the child's need for support to attend college/university or 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 college/university or occupational school the child would attend.

The court has considered each statutory factor, including the parents' income, assets and other obligations, including obligations to other dependents.   The court does not consider the defendant's support of his fiancée and her daughter as part of its analysis because the defendant has no legal obligation to support these individuals.  “ ‘Dependent’ means a spouse or child for whom a parent is legally responsible under the law.”  C.G.S. 46b–215a(1)(9).   Neither the defendant's fiancée nor her daughter constitutes a spouse or child for whom the defendant is legally responsible under the law.

The court has considered the relative income and assets of each of the parties.   The defendant's earnings far outweigh that of the plaintiff;  the defendant's net yearly income is twice that of the plaintiff's.   The defendant's total cash value of his assets is $807,325;  the plaintiff's total cash value of her assets is $461,380.

The court has considered Connor's need for support, available financial aid, reasonableness of attendance at the University of Delaware, and Connor's preparation, aptitude for and commitment to higher education.   The parties have stipulated that Connor needs support to attend college because of his limited assets and his inability to earn sufficient income to pay for college.   The parties have also stipulated to the amount of financial aid from other sources, including grants and loans.   The parties have further stipulated that the cost of college at the University of Delaware is reasonable considering Connor's academic record and the available financial resources, and that Connor's preparation, aptitude and commitment to higher education justifies an educational order.   Although the plaintiff disagreed with Connor's attendance at the University of Delaware, the court finds that his college selection was reasonable, given all of the circumstances.

An educational support order may include expenses such as room, board, dues, tuition, fees, registration application costs, books and medical insurance.   Education costs may also include student loans.   See Histen v. Histen, 98 Conn.App. 729, 734–35, 911 A.2d 348 (2006) (“actual cost” as used in 46b–56c does not contemplate net cost after deduction of students loans, but only after the deduction of amounts from sources not ultimately requiring repayment).   However, the costs paid by the parents shall not exceed the amount charged by the University of Connecticut for a full-time in-state student, except by agreement of the parents. 46b–56c(f).  The so-called “UConn cap” does not limit the cost of a child's education, nor does it require the child to attend the University of Connecticut.   It limits the amount that the parents may be required to pay under an educational support order.   See Tobet v. Tobet, 119 Conn.App. 63, 69, 986 A.2d 329 (2010).

The plaintiff argues that the money from Connor's college fund should be exhausted before the court enters an educational support order, and that the college fund is subject to the UConn cap.   The court rejects this argument.   The statute does not require that funds in custodial accounts created to benefit minor children be exhausted before the parties must comply with an educational support order.   See Celini v. Celini, 115 Conn.App. 371, 373, 973 A.2d 664 (2009) (issue of exhaustion of college funds not reached as inadequate record for review).   Additionally, the judgment, which incorporated the parties' agreement, does not contain such limiting language.   The parties, at the time of their dissolution agreement, were free to specify that any educational support order would first be subject to the exhaustion of the college funds.   The parties did not do so.   See Tobet v. Tobet, 119 Conn.App. at 65 (parties specifically stated in their dissolution agreement that “[p]rior to disbursement of any funds for college education costs, any funds that the children may have shall be exhausted”).   The judgment, incorporating the agreement of the parties, very clearly sets forth the fact that the college funds would be used for the children's college education, and that an educational support order was not being requested at the time of the dissolution, but that the parties reserved their right to file a petition at a later date.   The judgment does not require that the college funds be exhausted prior to the entry of an educational support order, nor does the judgment require that the college funds be subjected to the UConn cap.   Therefore, the court rejects the plaintiff's argument that the college fund must be exhausted prior to the entry of an educational support order, or that the UConn cap applies to the college fund.

The parties agree that the court's order should be retroactive to the date of the filing of the notice of the motion.   An educational support order may be modified or enforced in the same manner as any support order.  C.G.S. 46b–56c(h).  Section 46b–86(a) provides that “[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50.”  C.G.S. 52–50 requires services by a proper officer, not merely notice of the motion.   The retroactivity of a motion for an educational support order is limited to the date on which the non-moving party was served with notice of the motion.   See Kleinman v. Chapnick, 131 Conn.App. 812, 817–18, 30 A.3d 3 (2011) (46b–56c did not contemplate retroactivity to allow for educational support order for academic year prior to dissolution judgment).   See also Turner v. Turner, 219 Conn. 703, 715–16, 595 A.2d 297 (1991) (legislative intent to limit retroactivity period was to “preserve the due process rights of individual obligors to notice of their potential liability”).   Therefore, the court's order is retroactive to the date of the service by a proper officer on the plaintiff of the notice of the motion.   The court finds that notice was served on July 23, 2013, therefore, this order shall be retroactive to that date.

The court may direct that payments under an educational support order be made in the following manner:  (1) to a parent to be forwarded to the institution of higher education or private occupational school, (2) directly to the institution or school, or (3) otherwise as the court determines to be appropriate.  C.G.S. 46b–56c(g).  The parties have stipulated that the court's order should apply to all four years of Connor's undergraduate college education at the University of Delaware.   The court determines that it is appropriate in this case to pro-rate Connor's college fund over the course of the four years, and that the balance be paid by each party in an appropriate amount, given the statutory considerations and the UConn cap.

The fund had a balance of $76,353.98 as of June 30, 2013.   The court has pro-rated the balance in the fund, calculating that $19,088 per year ($9,544 per semester) shall be utilized from the fund for Connor's education.   The defendant paid the balance due of $15,614 for the fall semester 2013 from the fund, leaving an approximate balance in the college fund of $60,740.   An additional $3,474 shall be used from the college fund to cover the costs of the second semester of the 2013–14 academic year.

The parties are ordered to pro-rate the balance in the college fund ($60,740) for tuition payments for the next three academic years, which is approximately $19,088 per year.   As indicated above, the cost at the University of Delaware, minus grants, loans and Connor's $2,500 yearly contribution, is $31,080.   The balance due per year, after utilizing $19,088 per year from the college fund, is $11,992.   The court orders that the plaintiff shall pay $2,500 per academic year, and the defendant shall pay $9,492 per academic year.

Consistent with 46b–86(a) and applicable case law, this order is subject to modification for Connor's remaining three years at the University of Delaware.   The court retains jurisdiction for purposes of this order.

IV. Conclusion

The court has reviewed carefully all of the evidence, including the testimony and exhibits of both parties, affording appropriate weight to all.   Further, the court has reviewed the applicable law, particularly 46b–56c, and has considered the arguments of counsel.   The court orders the following:

1. Connor shall attend the University of Delaware for all four years of his undergraduate college education, maintain good academic standing, and make available all academic records to both parents during the term of this order.

2. The parties shall utilize $19,088 per academic year from Connor's college fund to pay college costs.

3. The plaintiff shall pay $2,500 per academic year for Connor's college costs;  the defendant shall pay $9,492 per academic year for Connor's college costs.

4. This order shall, by agreement, apply to all four years of Connor's undergraduate education at the University of Delaware.

5. This order shall be retroactive to July 23, 2013.

6. To the extent that the defendant has already paid the balance due for the tuition for the 2013–14 academic year, the plaintiff shall reimburse her share of $2,500 to the defendant by May 1, 2014.

7. Henceforth, the plaintiff shall pay to the defendant $1,250 (one-half of her $2,500 yearly share of tuition) no later than thirty (30) days prior to the due date of the tuition for each academic semester, which monies shall be used by the defendant to pay the tuition.   Defendant shall provide to the plaintiff no later than forty-five (45) days from the due date of the tuition for each academic semester an accounting from the University of Delaware of the cost of tuition, minus grants, scholarships, loans and other financial aid, including the due date for tuition payments.

8. This order shall be limited to the parties' obligations for a total of four full academic years, and shall terminate when Connor reaches the age of 23.

9. During the period of this order, Connor shall:  (1) maintain enrollment at the University of Delaware;  (2) continue to pursue a course of study commensurate with his vocational goals that constitutes at least one-half the course load determined by the school to constitute full-time enrollment;  (3) maintain good academic standing;  and (4) make available all academic records to both parents during the term of this order.   Pursuant to 46b–56c(e), the order shall be suspended after any academic period during which Connor fails to comply with these conditions.

10. The court shall retain jurisdiction of this matter to effectuate this educational support order for Connor.

BY THE COURT

Goodrow, J.

FOOTNOTES

FN1. The plaintiff testified as Ann Doyle, her maiden name having been restored at the time of the dissolution..  FN1. The plaintiff testified as Ann Doyle, her maiden name having been restored at the time of the dissolution.

FN2. The court denied the defendant's request that the court enter an educational support order for the other children based upon the fact that the parties' financial situation, as well as other 46b–56(c) statutory factors, may change before the other children enter college..  FN2. The court denied the defendant's request that the court enter an educational support order for the other children based upon the fact that the parties' financial situation, as well as other 46b–56(c) statutory factors, may change before the other children enter college.

FN3. An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree.  C.G.S. 46b–56c applies only in cases when the initial order for parental support of the child is entered on or after October 1, 2002..  FN3. An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree.  C.G.S. 46b–56c applies only in cases when the initial order for parental support of the child is entered on or after October 1, 2002.

FN4. The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of such waiver..  FN4. The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of such waiver.

Goodrow, Karen, J.