College Fund 3.jpgIt is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”

A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.

Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.

A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.

Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.

Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:

the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.

Justice Cooper began his analysis by noting that what was to be considered was the son’s best interests. New York’s Domestic Relations Law section 240(1-b)(c)(7), as amended in 1989, gave courts the authority to require a parent to contribute to the post-secondary education expenses of a child if warranted by those best interests and the circumstances of the case. That section provides:

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.

The Court expressly refused to accept the role of “college evaluator.” The Court was not a forum to debate whether a private college provides a better education than a state school. As the Court noted, there are no judicially manageable standards to usein a post-judgment divorce proceeding for determining the quality of education a student will receive at Syracuse University as compared to SUNY Binghamton, or for that matter as compared to any of the approximately four-thousand other colleges and universities in the United States.

However, Justice Cooper, himself a private college graduate, did approve the child’s choice. Syracuse was the only college to accept the child which provided strong programs in both of his desired fields of study, computer engineering and computer graphics. Additionally, the Court noted, Syracuse has what are known as Learning Communities, several which focus on science. These Learning Communities, as was explained by the mother, were group students of similar academic interests assigned to specific residences. This type of arrangement offered the child, who suffers from learning disabilities and social anxiety, an environment designed to help him achieve success both academically and socially.

The real issue is what college or university is the best for the individual child in question in the ways that matter most to that particular child . . . a very personal, very subjective decision. It is a decision that should be made not by a court but by the child, ideally with the help and support of both parents.

One would assume that every child may have a compelling reason to choose his or her college. Assessing each child’s subjective reasons may be more of a quixotic prospect for our courts than objectively assessing whether one college is better than another.

When, then, should a court yield to the subjective wishes of a 17-year old? Should it be only when his parents are divorced, or may the child of a married couple petition the Family Court to compel his parents to invade their savings and retirement plans to provide a loan-free private college education?

Must graduates of a private college make career choices which allow their children a loan-free private college, as well?

Certainly, Justice Cooper was, in part, persuaded by the pedigrees of the parents before him: undergraduates of Northwestern and Columbia, law school graduates of N.Y.U. and Cardozo. The Court did not discuss whether the parents, themselves, made use of scholarships, financial aid, or loans.

Nonetheless, these were middle-class professionals. Neither one of these parents could afford to pay out of current income his or her share of even one child’s college expenses. Here, there is also a 16-year old son who will likely be attending college in a year or two.

Justice Cooper determined that the father had the ability to pay. “Here, defendant has the income and the assets—as well as the ability to keep producing substantial income through his law practice—to make a significant contribution to his son’s college education.”

If a parent’s obligation to support his child ends on the child’s 21st birthday. should a parent’s obligation to pay for college be based upon the parents ability to earn long after the child’s 21st birthday.

Here, these parents, both professionals with private college and law school backgrounds, made career decisions which resulted in middle-class incomes. They chose to send their children to public high school. They did not accumulate significant funds earmarked for their children’s education.

As Justice Cooper rightly determined, children of divorce should not be discriminated against; however, does this ruling make children of divorce a favored class?

Here, the big picture appears to justify the financial result. Justice Cooper noted that the father’s periodic child support obligation was only $686.00 per month, having been determined in 2007 and based upon his 2005 income. If this was a formulaic periodic obligation determined the Child Support Standards Act reflecting his two children (25%), the award would gross up to an income of $35,000 to $40,000 per year (the Court reports that in 2005 the father had gross income from his law practice of $55,222, from which business expenses were likely deducted). The father was also paying only 22% of the add-on expenses for health care and summer camp, reflecting the 2005 ratio of his income to that of the mother. Moreover, the Court noted “although remarried for a number of years, [the father] has chosen to keep a second apartment in addition to the residence he shares with his new wife.”

Justice Cooper directed that the father bear 40% of the cost of the son’s Syracuse U. education: an obligation of $21,200 per year. (No mention is made of a credit against his periodic support obligation for the portion of that $21,200 allocated to room and board.) Compare that, say, to a 50% obligation with a SUNY cap, or $9,000. The $12,200 excess only approximates a readjustment of the monthly child support obligation to reflect his 2010 net income of $100,000, and then the application of a SUNY cap. The result, then, is unremarkable, looking at the total current income and the total support obligation.

Other factors not directly on point were also likely here at play. This was a high-conflict divorce; with the parent, perhaps, abusing the system. Being lawyers, both parents were pro se, representing themselves in a continual barrage upon the Court. This was the 16th post-judgment application to the Court in the 3 years since their divorce judgment was entered.

Moreover, the child was already in college; his choice was acted upon. This was not a case of advanced planning; a ruling made in the fall of a child’s senior year of high school to guide the college selection process.

As Justice Cooper noted, the courts have refused to make college-expense rulings in advance, “when college is several years away, the choice of college and the cost of tuition are uncertain, and the child’s academic interests and abilities are not supported by evidence.”

However, an after-the-fact invasion of assets and retirement funds justified by future earning capacity is not the answer, either. A guarantee of a loan-free private college education may be a dangerous precedent.