Paul R. Newman v. Janette E. Newman (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR POST–SECONDARY EDUCATIONAL SUPPORT ORDER

The plaintiff Paul R. Newman and the defendant Janette E. Newman were married on June 22, 1991 and divorced on June 1, 2012.   They are the parents of two children:  Andrew Hart Newman, born on October 25, 1995, and Michael Keith Newman, born on June 8, 1999.   On January 2, 2014, the plaintiff filed a motion for a post-majority educational support order allocating the cost of Andrew's college education between the parties (# 128.00).   For the reasons set forth below, the plaintiff's motion is granted in part and denied in part.

I

The judgment of dissolution entered by the court (Malone, J.) on June 1, 2012 (# 119.55) incorporated by reference the parties' June 1, 2012 separation agreement (the June 2012 agreement) (# 118.00).   Article IV, § 4.2 of the June 2012 agreement stated that the parties agreed that they would have provided a post-secondary school education to their children if the family had remained intact, and they jointly requested the court to retain jurisdiction to make post-secondary educational support orders on behalf of the children pursuant to General Statutes § 46b–56c.   The parties also agreed to use the funds from the children's custodial accounts and apply for scholarships and loans prior to seeking an order from the court.

Article II of the June 2012 agreement provided for a shared parenting arrangement between the parties.   The parties shared joint legal custody of the children, and the children continued to reside with the plaintiff.   In view of their shared parenting arrangement, the parties agreed in Article III of the June 2012 agreement to deviate from the child support guidelines in that neither party would pay child support to the other.   The parties also agreed to share all unreimbursed medical expenses and all agreed-upon extra-curricular expenses, with the plaintiff paying 67 percent and the defendant paying 33 percent.

II

The parties were before the court on February 18, 2014 on the plaintiff's motion for a post-majority educational support order.   The plaintiff sought an order that required the plaintiff and the defendant to share equally the cost of college for their son Andrew, after any grants and loans were exhausted.   The plaintiff and the defendant each represented themselves.   The court heard testimony from both parties, and each party provided an updated financial affidavit.

Andrew matriculated at the University of Wisconsin in September 2013.   His first quarter grades were excellent, and he was named to the Dean's List. Although he enrolled as a freshman, he had thirty-six Advanced Placement credits from high school, enough to qualify for sophomore standing.   He is planning to graduate in three years.

Andrew's tuition, room and board, and other fees and expenses totaled $36,995 for the University of Wisconsin 2013–2014 academic year.   Approximately $23,000 of the total cost of $36,995 has been covered by the funds in Andrew's custodial account ($7,029), the grants he received ($5,444), and his student loans ($10,460), leaving a balance of approximately $14,000 to allocate between the parties.   Andrew also has an on-campus job.   He is considering taking the next academic year off, while continuing to work on campus, so that he can establish residency in Wisconsin.   His maternal grandparents live in Wisconsin.

The parties are justifiably proud of Andrew and his academic achievements.   They agreed with Andrew's decision to attend the University of Wisconsin, rather than a less expensive public college or university in Connecticut, and they want him to continue his education there.   The total cost for a state resident to attend the University of Connecticut full time is $23,744 for the 2013–2014 academic year.

To date, the plaintiff has paid $7,420 of Andrew's expenses for this academic year that were not covered by Andrew's custodial account, grants and student loans, and the defendant has paid $4,182.   At the time of the hearing, the bill for Andrew's fourth quarter housing, in the amount of $1,810, was outstanding and due for payment in early March 2014.   The plaintiff maintained that, if the additional costs were divided equally, each of the parties should contribute $6,959 for this academic year.   He said that the defendant should pay him $461, and she should cover the remaining expenses for this semester.

The plaintiff testified that approximately $20,000 of Andrew's college expenses in the 2014–2015 and 2015–2016 academic years would not be covered by Andrew's scholarships and loans if Andrew did not establish residency in Wisconsin.   If Andrew became a Wisconsin resident, the cost of his education would be lower.   The plaintiff proposed that the shortfall be divided equally between the parties going forward.

The defendant did not object to contributing to Andrew's educational expenses, but she did not believe it was fair to divide the costs equally, because the plaintiff earned so much more than she did.   The plaintiff is employed full time as a firefighter by the City of Stamford.   He also serves as a representative for the Stamford Firefighters Local 786, for which he receives a stipend and $100 per day for representing the union in contract negotiations.   The plaintiff's after-tax income in 2013 was approximately $102,913.   The defendant is employed full time by the Center for Advanced Pediatrics.   Her 2013 after-tax income was $46,512.

According to their respective financial affidavits, the plaintiff's net weekly income is $1,907, and the defendant's net weekly income is $942.   The plaintiff reports weekly expenses of $2,203, including costs for the children's education and activities.   The defendant reports weekly expenses of $537.

The parties' younger son, Michael, is still in high school.   The plaintiff has primary physical custody of Michael, but the defendant spends time with Michael as well.¹  Most of the expenses for Michael are reflected on the plaintiff's financial affidavit.   The plaintiff claims both sons as dependents for income tax purposes.

The plaintiff resides in the parties' former marital home.   The house is still in the names of both parties, as are the first mortgage and a home equity loan on the property.   The plaintiff reports on his current financial affidavit that the estimated fair market value of the property is $588,000, with a $250,000 mortgage and a $187,150 home equity loan.   The equity in the property is estimated to be $150,850, of which the plaintiff's interest is valued at $130,850.

The defendant has an interest in undeveloped land in Wisconsin owned by her family, which has been on the market for more than two years.   The defendant testified that the Wisconsin property had a fair market value of $59,800 in 2013.   She said that her uncles, who are in charge of the property, set the sale price of $1.55 million.   She valued her interest in the property at $7,475 on her current financial affidavit.

III

If a decree of dissolution provides that a motion for an educational support order may be filed by either parent at a subsequent date, the court has jurisdiction to enter an educational support order after the decree has entered.  General Statutes § 46b–56c(b)(1).²  Pursuant to General Statutes § 46b–56c(a), the court may enter an educational support order requiring a parent to provide support for a child “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 obtaining a bachelor's or other undergraduate degree, or other appropriate vocational education.”  General Statutes § 46b–56c(a).

As a predicate for entering an educational support order, the court must find “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.”  General Statutes § 46b–56b(c).  The statute requires that the court expressly make this threshold finding before it enters an educational support order.  Sander v. Sander, 96 Conn.App. 102, 117, 899 A.2d 670 (2006).   The court is mandated to consider all relevant circumstances in determining whether to enter an educational support order, “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 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.”  General Statutes § 46b–56c(c).

General Statutes § 46b–56c(f) provides that “[t]he educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child.”  General Statutes § 46b–56c(f).

To be valid, an educational support order must be limited to no more than four full academic years leading to a bachelor's or other undergraduate degree, and it must terminate not later than the child's twenty-third-birthday.   The expenditure ordered cannot exceed the amount charged to a full-time in-state student at the University of Connecticut, and it cannot include expenses not covered by the statute.  Kelman v. Kelman, 86 Conn.App. 120, 125–26, 860 A.2d 292 (2004);  Bock v. Bock, Superior Court, judicial district of Stamford/Norwalk, Docket No. FA–05–4005415–S (March 23, 2010;  Shay, J.) (49 Conn. L. Rptr. 545).

To qualify for payments under an educational support order, a child must comply with the requirements of General Statutes § 46b–56c(e).   The child must “(1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a–22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment, (3) maintain good academic standing in accordance with the rules of the institution or school, and (4) make available all academic records to both parents during the term of the order.”  General Statutes § 46b–56c(e).

IV

The court has jurisdiction pursuant to General Statutes § 46b–56c(b)(1) to enter an educational support order allocating the cost of Andrew's college education between the plaintiff and the defendant.   The parties jointly requested the court to retain jurisdiction to enter educational support orders on behalf of their children in the June 2012 agreement, which was incorporated by reference in the June 1, 2012 dissolution decree.   The court also finds that the parties would have provided support to their children for their post-secondary school education if the family had remained intact, as they set forth in the June 2012 agreement.

The parties testified that Andrew was well-prepared for his post-secondary education, with thirty-six Advanced Placement credits, and that he is committed to completing his undergraduate degree in three years.   Andrew's first semester grades indicate that he has the aptitude and the ability to excel in college, and that the University of Wisconsin is an appropriate place for him.

Andrew applied the funds in his custodial account—$7,029—to the costs for his first year at the University of Wisconsin.   He obtained scholarships and loans totaling $15,904 that covered about 43 percent of his college expenses for the 2013–2014 academic year.   Andrew also has an on-campus job.

It is expected that Andrew's tuition, room and board, and other fees and expenses will remain in the range of $36,995, unless Andrew establishes residency in Wisconsin and receives the benefit of lower tuition as an in-state student.   It is also likely that Andrew will have a similar financial aid package for the next two years, which will leave a shortfall of approximately $20,000 to divide between the plaintiff and the defendant each year.

Considering all of the relevant circumstances, including Andrew's academic achievement at the University of Wisconsin, the financial aid available to him, the respective income and assets of the parties, and the parties' responsibility to support their son Michael, who is still in high school, as well, the court finds that an educational support order allocating the cost of Andrew's college education between the parties is appropriate here.   In view of the disparity in the earnings of the parties, however, the court does not find that the balance remaining after Andrew's scholarships and loans are applied to the cost of his education should be divided equally;  rather, where the plaintiff's net weekly income is approximately twice that of the defendant, the plaintiff should pay two-thirds and the defendant should pay one-third.³  This educational support order is subject to the following:  neither party shall be obligated to pay more than $23,744, the amount charged to a full-time in-state student by The University of Connecticut for the 2013–2014 academic year, which is when Andrew matriculated at the University of Wisconsin;  the order shall cover no more than four full academic years leading to Andrew's obtaining a bachelor's or other undergraduate degree;  the order shall not include expenses not covered by General Statutes § 46b–56c;  and the order shall terminate on October 25, 2018, Andrew's twenty-third birthday.

V

The court has fully considered the provisions of General Statutes § 46b–56c, the relevant case law, the testimony of the parties, and the parties' financial affidavits in making the following findings and in entering the educational support order set forth below:

1. The parties would have provided support to their children for their post-secondary school education if the family had remained intact.

2. The parties' son, Andrew, matriculated at the University of Wisconsin in the fall of 2013 for the 2013–2014 academic year.

3. Andrew intends to graduate from the University of Wisconsin in three years.

4. The total cost of Andrew's college education for the 2013–2014 academic year at the University of Wisconsin is $36,995.

5. Andrew's custodial account and his financial aid package covered approximately $23,000 of the cost for the 2013–2014 academic year, leaving a balance of approximately $14,000 to be paid by the parties.

6. Andrew's financial aid package is expected to cover approximately $16,000 of the cost for the 2014–2015 and 2015–2016 academic years, leaving a balance of approximately $20,000 to be paid by the parties.   This amount will be lower if Andrew establishes residency in Wisconsin.

7. The amount charged to a full-time in-state student by The University of Connecticut for the 2013–2014 academic year is $23,744.

8. Andrew will turn twenty-three years old on October 25, 2018.

9. Where the plaintiff's net weekly income is approximately twice that of the defendant, it is fair and equitable for the plaintiff to pay two-thirds of the balance remaining after Andrew's scholarships and loans are applied to the cost of his education, and for the defendant to pay one-third, up to the maximum of $23,744, under General Statutes § 46b–56c.

Accordingly, the plaintiff's motion for an educational support order is granted in part and denied in part, and it is hereby ORDERED as follows:

1. The plaintiff shall pay two-thirds of the balance remaining after Andrew's scholarships and loans are applied to the cost of his education, and the defendant shall pay one-third of such remaining balance;  provided, however, that neither party shall be obligated to pay more than $23,744, the amount charged to a full-time in-state student by The University of Connecticut for the 2013–2014 academic year, which is when Andrew matriculated at the University of Wisconsin;  this order shall cover no more than four full academic years leading to Andrew's obtaining a bachelor's or other undergraduate degree;  this order shall not include expenses not covered by General Statutes § 46b–56c;  and this order shall terminate on October 25, 2018, Andrew's twenty-third birthday.

2. While this order remains in effect, the plaintiff shall notify the defendant of any expenses covered by this order within seven days of receiving an invoice for payment of such expenses;  within ten days of such notice, the defendant shall remit payment to the plaintiff of her one-third share of such expenses;  and the plaintiff shall pay the expenses in full, on or before the date they are due.

BY THE COURT

HELLER, J.

FOOTNOTES

FN1. The plaintiff testified that Michael was with him more than 75 percent of the time.   The defendant did not agree, and she said that she had Michael some weekends, too..  FN1. The plaintiff testified that Michael was with him more than 75 percent of the time.   The defendant did not agree, and she said that she had Michael some weekends, too.

FN2. General Statutes § 46b–56c(b)(1)–(4) sets forth all of the circumstances under which the court may enter an educational support order..  FN2. General Statutes § 46b–56c(b)(1)–(4) sets forth all of the circumstances under which the court may enter an educational support order.

FN3. The court notes that the parties have previously agreed to allocate certain expenses for their children this way.   In the June 2012 agreement, the plaintiff agreed to pay 67 percent of all unreimbursed medical expenses and all agreed-upon extra-curricular expenses for the children and the defendant agreed to pay 33 percent of these expenses..  FN3. The court notes that the parties have previously agreed to allocate certain expenses for their children this way.   In the June 2012 agreement, the plaintiff agreed to pay 67 percent of all unreimbursed medical expenses and all agreed-upon extra-curricular expenses for the children and the defendant agreed to pay 33 percent of these expenses.

Heller, Donna Nelson, J.