In an unusual reversal of itself, the South Carolina Supreme Court in a 3-2 opinion authored by Justice Kaye Hearn reversed itself on the issue of the Family Court’s authority to order a non-custodial parent to help pay for an emancipated child’s college expenses.
In McLeod v. Starnes, issued March 7, 2012, the South Carolina Supreme Court overruled Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)(which had held that it was a violation of the Equal Protection Clause to make non-custodial parents contribute to an emancipated child’s college expenses overruling Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). In McLeod, the Supreme Court finds that the State has a legitimate interest in protecting the children of divorced parents from the ill-will often engendered by acrimonious family break-ups and held that our judges can now again order non-custodial parents to help pay for college expenses.
In so ruling, the Court placed a heavy emphasis on the State’s interest in protecting the children of divorced families from “the acrimony of marital litigation impact[ing] a parent’s normal sense of obligation towards his or her children.” The Court stated:
As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society. It is entirely possible “that most parents who remain married to each other support their children through college years. On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.” In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980).
Based on the possibility that some parents, when deprived of the custody of their children, might retaliate against the custodial parent by refusing to assist the child with college expenses, the Court has reinstated the law of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979).
Under Risinger and its progeny, a family court judge may require a “parent to contribute that amount of money necessary to enable a child over 18 to attend high school and four years of college, where . . . there is evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.”
For those parents who hoped to ask for support to pay for their children’s college expenses as part of their divorce action or subsequent to their divorce but chose not to pursue this relief because of the April 2010 ruling in Webb v. Sowell, they should contact their former attorney and revisit this issue. Based upon McLeod v. Starnes it may be possible to seek this relief from the non-custodial parent for children who plan to attend college or are currently in college and not supported by the other parent.