Education savingsA parent who pays all or some portion of a child’s college room and board expenses is often entitled to a credit against that parent’s base child support obligation. The Appellate Division, Second Department, in its May 6, 2015 decision in Sawin v. Sawin, appears to hold that such credits may only be taken only against the base child support obligation for the child attending college and then only for the months that the child is away at school.

In Sawin, the parties were married in 1988 and had three children.  During the marriage, the husband worked as a firefighter, and in 2011, he earned approximately $122,500. The wife stopped working full-time after the birth of the parties’ second child in 1994. In 2004, she began working part-time as a real estate agent, earning approximately $15,000 in 2010 and $23,000 in 2011.

In December 2010, the wife commenced this matrimonial action seeking, among other things, child support, maintenance, and equitable distribution. At the time of trial in February 2012, the parties’ oldest child was in college and resided on campus during the school year.

The Second Department noted that among other rulings Putnam County Supreme Court former Justice Francis A. Nicolai properly directed the husband to pay a proportionate share of the children’s college expenses as part of the child support award. However, the appellate court noted that the husband was entitled to a credit for at least some portion of the college room and board expenses he paid.

The child support award should have included a provision either directing that, when a child is living away from home while attending college, the [husband’s] monthly child support obligation shall be reduced, or awarding the [husband] a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months.

Accordingly, the Second Department remitted the issue for a determination of the husband’s child support obligation “for any time periods that one or more of the parties’ children are living away from home at college.”

Comment: The rule, although logical, may be both difficult to apply and inequitable. For example, what happens in December and January when a child is home half the time for intersession or the winter recess. Do we start having to count the days?

No. The entirety of the room and board expense gets spread over the total number of days the child is away at school. One way or the other, a potential credit should be available for the entire expense.

The bigger problem is capping the credit at the total base child support obligation attributable to the child attending college. Take this family with three children. The child support formula would use 29% of parental income to determine that base obligation. After one of the children is emancipated, 25% is the formula percentage.

Does that mean that only 4% of parental income is being used to support the eldest child? No. 29% is being used to support all three children. The credit should be available against one third of the base obligation.

Of course, not every penny of the support for the child in college is earmarked for room and board at school. The overhead expenses of the home must still be paid. There are also expenses for clothing, vacations, etc.

All that being said, the time and cost of proving the equities in a case would outweigh the credit. A rule is necessary.

Yesterday’s blog post discuss the maintenance and basic child support awards. Tomorrow’s post will discuss giving credits to the wife for debts she incurred after the divorce action was commenced.

Jason A. Advocate, of Advocate & Lichtenstein, LLP (John H. Hersh, former counsel on the brief), of Manhattan, represented the husband. Sarah R. Scigliano, of Stephen M. Santoro, Sr., P.C., of Carmel, represented the wife.