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.

 

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5 Responses to “SC Supreme Court: Family Court Has Authority to Order College Expenses Contribution from Non-Custodial Parents”

  • I support the Webb decision and I think the dissent got it right in McLeod. However, I always thought that Risinger was given more weight by lawyers than it was worth because in actual practice judges hate to award college education expenses. My pre-Webb cross-examination was “What kind of car does the child have?” Once we establihed the child had a car, my argument becamee that the child could afford luxuries and therefore did not need help from my client to pay for his or her education. If the defense focuses on a strict interpretation of Risinger, the court will not require a contribution by the parents. I have another problem with McLeod in that it suggests that only the non-custodial parent can be required to contribute, which I see aa a separate equal protection violation.

  • admin:

    Thomas, I have seen terrible situations where parents who could pay for college punish their children by not supporting them because they wanted to use the child as a pawn to retaliate against their ex-spouse. I am actually glad the law changed, but I also admire the wisdom espoused by Justice Beatty in his dissent. I, too, noticed that the Court referred to payment by the non-custodial parent. At first, I wrote divorced parents, but a colleague caught my error and told me to re-review the opinion. I am sure that was clerical error. Note the AP sent the story out and was picked up by many news organizations all with the title referencing “Divorced Parents” might have to pay for college expenses. Thank you for reading and contributing to the blog.

  • I would argue that once a child is 18 and emancipated, BOTH parents are non-custodial even if the child is still living with one and going to college.

  • admin:

    Gary,

    Good comment, and the courts will likely agree as they should. Thanks for your post and contribution!

    Melissa

  • [...] v. Risinger.  You can learn more about the McLeod decision in Melissa Brown‘s article published at her SC Divorce Law blog. Tweet Like Email Print Comment [...]

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