Are tuition expenses for private school recoverable in child support or divorce?

Are non-custodial parents obligated to contribute towards private/religious school expenses once child support has been determined by the court?  This is a question that many practitioners have tried to push for (and others defend against), and one that the NY courts have not drawn a line in the sand and ordered either party one way or the other.
The Family Court Act (“FCA”) section 413(1)(c)(7) provides in pertinent part: “Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.”

On its face, FCA 413 would seem to indicate that non-custodial should in fact be responsible for private school expenses. However, courts are free to use their own discretion in determining such orders.  For example, some of the factors the courts take into consideration include the parents’ educational background (i.e. whether they themselves enrolled in private school), the grade of the child, how long he/she has been attending the school, whether the education they are receiving is superior to that of the local public school in their district, the financial resources of the parents, etc.

Although there are numerous cases which have found against private school contributions, the following cases have concluded that the non-custodial parent should be partially responsible for private school expenses, based on the parents’ pro rata combined earnings.

In Matter of Overbaugh v. Schettini, 103 A.D.3d 972 (3rd Dep’t 2013), the Court directed that the father “pay 50% of the child’s private school tuition.”  Id. at 974.  Thus, where there are prior orders of support that are “silent as to the parties’ responsibility for the costs of a private secondary education, [a] Family Court may award educational expenses as justice requires, ‘having regard for the circumstances of the case and of the respective parties and in the best interests of the child.’” (Family Ct Act § 413 [1] [c] [7]; seeMatter of Wen v Wen, 304 AD2d 897, 898, 757 NYS2d 355 [2003]; see alsoMatter of Amos-Richburg v Richburg, 94 AD3d 1112, 1113, 942 NYS2d 613 [2012]; Matter of Durso v Durso, 68 AD3d 1107, 1108-1109, 893 NYS2d 81 [2009]). The “Relevant factors . . . include the parents’ educational background, the child’s academic acuity and the financial situation of the parents.” (Matter of Wen v Wen, 304 AD2d at 898 [citations omitted]).  Id.

In Overbaugh, when trial was taking place, the child was beginning his fifth year at the private school. His father, “who attended private school as a child, was consulted regarding (and did not oppose) the initial decision to send the child to a private school—a decision that was based upon, among other things, the child’s prior performance at a public elementary school.”  Id. Additionally, “the father’s stepson and daughter from a subsequent marriage both attend private schools and, further, that the father has the financial resources to contribute to his son’s educational expenses ‘without impairing his ability to support himself and maintain his own household.’”  Id. at 975 (citation omitted.) Based on these circumstances, “the Support Magistrate appropriately concluded that the father should pay 50% of the child’s tuition, and [the] Family Court, in turn, properly denied the father’s objection thereto.”  Id.

Similarly, in a recent Family Court Order, a father consented to his son’s enrollment in a private school.  Kristina Lynn B. v. Joseph T.M., 958 N.Y.S.2d 293 (Fam. Ct. Albany Cty. 2013).  As a result, the Family Court perceived it as

an admission on his part that CBA was the best educational setting for his son.  On the other hand, the parents’ agreement that the mother would pay for CBA is not relevant to the outcome of these objections. The reason that is so is because Family Court has no authority to enforce contracts (seeBoden v. Boden, 42 NY2d 210, 366 N.E.2d 791, 397 N.Y.S.2d 701; Brescia v. Fitts, 56 NY2d 132, 436 N.E.2d 518, 451 N.Y.S.2d 68). If it could, it would be possible that the Court would be asked to set aside the parents’ agreement beyond the first year because there was no agreement in writing required by the statute of frauds (GOL §5-701). Or, perhaps, the mother would have argued that the father’s acquiescence to the child’s enrollment in the 7th grade at the private school might be deemed a renewal of the agreement for which the father is estopped from registering an objection. Because Family Court is a court of limited jurisdiction, it has no authority to rule on such issues. Its jurisdiction is limited, in this case, to applying FCA §413(1) (c)(7) to the evidence. The interpretation of an oral contract between the parties or imposing equitable relief is beyond this Court’s authority.

Id. at 294.

The Magistrate’s finding that the father should be responsible for his proportional share of the son’s private school expenses possesses a sound and substantial basis.  Part of the reason for the change in schools was due to the fact that the “‘child had been diagnosed with an auditory processing disorder in 2009 … [and] has been suffering from a depression and other emotional difficulties which has required treatment with increasing dosages since 2009.’”  Id. (citation omitted.)  The Magistrate also concluded that “since the child’s transfer to private school, he has been thriving and his emotional state has improved resulting in a decrease in his medication. It was also established that the father’s income increased by 41% or $44,600 since the last support order, which was the judgment of divorce issued in 2007.”  Id. at 295.

The Court noted that the “language ofFCA §413(1)(c)(7) does not command any formula with respect to apportionment of private school tuition.”  Id.  Thus, the father was able to make a “plausible claim that the reference in FCA §413(1)(c)(7) to a determination ‘as justice requires’ would allow the Court to take into account that the mother reneged on her agreement to pay for the total cost of tuition.”  Id.  However, the Court did not read that phrase as “a green light by the Legislature for the Family Court to assume subject matter jurisdiction not specifically given to the Court by positive law [and] [e]ven if it could be read this way, the father’s consenting to allow his child to be enrolled in the selected school for two academic years would be a convincing counterweight to the argument suggested.”  Id.  Therefore, the Court ordered that the father was responsible for paying his proportional share of the tuition simply because the Magistrate findings support such a conclusion.  As a result, the father was ordered to pay 71% of the son’s tuition and other fees for the school year.

Finally, in Mahoney-Buntzman v. Buntzman, N.Y. Misc. LEXIS 2754, at **116-17 (N.Y. Sup. Ct. Weschester Cty. Oct. 3, 2006), the Court determined that although private school expenses don’t constitute mandatory “add-ons” under the Child Support Service Act, a father may be ordered by the court to contribute to his daughters’ college expenses if it “determines that such an award is appropriate.”(Matter of Calvello v. Calvello, 20 A.D.3d 525, 526-527, 800 N.Y.S.2d 429 [2d Dept. 2005]; seeFCA § 413[1][c][7]; DRL § 240[1-b][c][7]).  Nonetheless, “a court does not have unfettered discretion in making such an award. Rather, consistent with CSSA, the Court ‘must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.’” Id. at *116-117 (citations omitted).

In conclusion, there is a strong argument to be made that private school expenses can and will be ordered to be shared by the parents.  Know your rights prior to any order of support.  If there is a history of private school enrollment, superior quality of education and the length of time spent in private school, a court may find that it is, in fact, in the child’s best interests to continue enrollment in private school.