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SupportGuidelines.com

THE DUTY TO PAY COLLEGE/POST-SECONDARY EDUCATIONAL EXPENSES

Laura Wish Morgan

In the March 2000 article, we looked at the duty of parents to support adult disabled children, and noted that it was an exception to the general rule that a parent's duty to support a child ends upon the child's majority. The other major exception to the rule that parents are relieved of the duty of child support when the child reaches majority is when a statute or case law provides that the court may order the parents to contribute to the college/post-secondary school expenses of the child.

There are three basic categories of statutes under which a court has the authority to order that parents pay the college expenses of their children. First, where the age of majority is higher than 18, the court have permitted the support to continue while the child is in college and to encompass college expenses. (1) Second, in some states, the legislatures have adopted statutes that expressly permit college support awards. (2) Third, in some states, the court have acted to permit college support with legislative action. (3) In all states, except Pennsylvania, (4) where the law allowing the court to impose the duty to support college-age children has been challenged on constitutional grounds, the law has been upheld. (5)

Of course, it must be stressed that even in the absence of statute or case law authorizing the court to order the payment of college expenses, the parties are always free to agree in a separation agreement or otherwise that they will pay for such expenses. (6) These agreements will be enforced even when they are less than specific about the exact amount of support to be paid. Since the costs of college are difficult to anticipate in advance, college support agreements could rarely be enforced if the courts insisted upon a specific listing of the costs and amounts covered. In recognition of this fact, the courts have enforced these agreements even where their language was very broad. For example, agreements to pay "reasonable" college costs are routinely enforced by the courts. (7) Where, however, the order provided only that the payor had a "moral obligation" to provide college support, there was no legal obligation. (8)

Since college expenses and other post-majority child support cannot be awarded by the court in a majority of states, most courts impose such an obligation by contract only where there is supporting language in the contract. (9) Where the contract does contain supporting language, however, the courts have tended to construe that language to require contribution. (10) It is probably safe to say that most courts recognize the practical need for children to have a college education, and that they generally tend to construe agreements to contain meaningful college support provisions, so long as the agreement contains a reasonable minimum amount of supporting language.

State College Support Liability
Alabama Courts may require parents to provide post-minority support for child's college education. Bayliss v. Bayliss, 550 So. 2d 1038 (1989); Ala. Code § 30-3-1.
Alaska Courts may not require parents to pay for college. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).
Arizona No statute or case law holding parents to duty. Solomon v. Findley, 167 Ariz. 409. 808 P.2d 294 (1991).
Arkansas No statute or case law holding parent to duty. Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985).
California No statute or case law holding parent to duty.
Colorado Colo. Rev. Stat. § 14-10-115(1.5)(b) provides that for orders entered prior to July 1, 1997, support may be ordered. In re Marriage of Robb, 934 P.2d 927 (Colo. Ct. App. 1997).
Connecticut No statute or case law holding parent to duty.
Delaware No statute or case law holding parent to duty.
District of Columbia D.C. Code § 16-916 provides that minor children are entitled to support; the age of majority is 21.
Florida No statute or case law holding parent to duty.
Georgia No statute or case law holding parent to duty.
Hawaii Haw. Rev. Stat. § 580-47 and Haw. C.S.G. provide that courts may order support for adult children in college.
Idaho No statute or case law holding parent to duty.
Illinois 750 Ill. Law. Con. Stat. § 5/513 provides that court may make provisions for educational expenses of child, whether or minor or majority age.
Indiana Ind. Code § 31-1-11.5-12(b)(1) provides that a child support order may include sums for institution of higher learning.
Iowa Iowa Code § 598.1(2) provides that support means an obligation which may include support for a child between 18 and 21.
Kansas No statute or case law holding parent to duty.
Kentucky No statute or case law holding parent to duty. Reed v. Reed, 547 S.W.2d 4 (Ky. 1970).
Louisiana No statute or case law holding parent to duty.
Maine No statute or case law holding parent to duty.
Maryland No statute or case law holding parent to duty.
Massachu-setts Mass. Gen. Laws ch. 208, § 28 allows court to render support order for child between ages 18 and 21 who is dependent on parent for support.
Michigan No statute or case law holding parent to duty.
Minnesota No statute or case law holding parent to duty.
Mississippi Age of majority is 21; college support may be ordered. Stokes v. Martin, 596 So. 2d 879 (Miss. 1992).
Missouri Mo. R. Civ. Pro. 88.01; Mo. Rev. Stat. § 452.240.5 provides that support obligation may be extended to age 22 for college.
Montana No statute or case law holding parent to duty.
Nebraska No statute or case law holding parent to duty. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
Nevada no statute or case law holding parent to duty.
New Hampshire Gnirk v. Gnirk, 134 N.H. 199, 589 A.2d 1008 (1991) held that support may be awarded for college expenses.
New Jersey Newburgh v. Newburgh, 88 N.J. 529, 443 A.2d 1031 (1982) held that court has jurisdiction to entertain motion to modify original judgment of divorce to award payment of college expenses.
New Mexico No statute or case law holding parent to duty.
New York N.Y. Dom. Rel. Law § 240(1-b)(c)(7) provides that court may award educational expenses for college to age 21.
North Carolina No statute or case law holding parent to duty.
North Dakota N.D. Cent. Code § 14-09-08 allows court to order college expenses. Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998)
Ohio No statute or case law holding parent to duty.
Oklahoma No statute or case law holding parent to duty.
Oregon Or. Rev. Stat. § 107.275(1)(e) authorizes court to order parent to pay support for child attending school to age 21. In re Marriage of Crocker, 157 Or. App. 651 (1998)
Pennsyl-vania No authority to award college support. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995)
Rhode Island No statute or case law holding parent to duty.
South Carolina Court may order college support. Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979)
South Dakota No statute or case law holding parent to duty.
Tennessee No statute or case law holding parent to duty.
Texas No statute or case law holding parent to duty.
Utah Utah Code Ann. § 15-2-1 provides that in divorce actions, courts may order support to age 21.
Vermont No statute or case law holding parent to duty.
Virginia No statute or case law holding parent to duty.
Washington Wash. Rev. Code § 26.19.090 provides that the court may, in its discretion, award college support.
West Virginia No statute or case law holding parent to duty.
Wisconsin No statute or case law holding parent to duty.
Wyoming No statute or case law holding parent to duty.

The first step in determining whether and how much to award for college expenses is determining is determining the child's "reasonably necessary college costs." In determining what constitutes "reasonably necessary college costs," the courts look at the choice of college, the actual expenses the child incurs, and the period over which the child incurs the costs.

While a four-year liberal arts school is the norm, college expenses can include community college, (11) and vocational school. (12) If the child is attending a school that qualifies as a "college" or post-secondary school under the statute, the question then becomes whether the choice of school was reasonable. Some courts have held that when a child chooses a private college over a public university, the child must sow some advantage to attending that institution. (13) By the same token, a parent seeking to avoid private college costs must give the child reasonable notice of this fact so that plans can be made accordingly. (14)

Some separation agreements give the payor the right to approve the child's choice of school. Courts disfavor these provisions, as the power to disapprove the school can easily be used in bad faith to avoid liability altogether. Thus, an absolute right of approval will be granted only where the contactual language is clear. For example, a mere provision giving the payor the right to "participate" in choosing the school does not give an absolute right of approval. (15) Likewise, where the contract requires payment of reasonable expenses, the payor cannot unilaterally deem the child's choice of school unreasonable. (16) Where the language of the agreement is clear, however, a right of approval will be enforced. (17)

Where the contract appears to grant a right of approval, the court may avoid the provision to some extent by imposing a requirement of good faith. For instance, in Tapp v. Tapp, (18) where the agreement required the husband to pay expenses "at a college or university of the Husband's approval," the court held that the husband was required to act in good faith. On the facts, the contract spoke in terms of a "four year" program, but the husband refused to approve any institution other than a two-year community college. The court held that this refusal was not made in good faith. (19)

Some agreements limit the payor's liability to college costs at a defined school, often a local state university. These provisions are generally viewed with favor as an attempt to limit the payor's liability to an affordable level. (20) If the agreement does not expressly refer to the in-state tuition cost, and the child attends a local university after moving out of state, the payor's liability cannot be limited to the in-state amount. (21)

Under the various statutes, the court must consider the actual expenses incurred as reflected in the record. (22) Expenses covered generally includes tuition, books, field trips, and gasoline. (23)

Under an agreement, where the agreement refers only to reasonable college expenses, it covers both tuition payments and other educational costs, such as textbooks. (24) Tuition includes any fee charged by the college as a requirement for attending classes, regardless of the precise label. (25) In addition, the agreement includes the room and board costs if the child resides away from home. (26) If the child resides at home with the non-paying spouse, the obligor must pay any extra costs incurred by that spouse due to the child's residence. (27) It is error, however, to charge the obligor with hypothetical room and board cost for student residing at the school. (28)

Expenses incurred for activities other than traditional study should be included if they result in credit toward graduation. For example, a New York court applied this rule to the costs of advanced placement tests which yielded college credit, and to the costs of a semester at Cambridge. (29) The expenses of attending college do not include transportation costs and a living allowance; (30) medical expenses; (31) or the costs of voluntary extracurricular activities. (32)

When an agreement is silent as to amount, it requires payment of all costs actually incurred, and not merely reasonable costs. (33) Likewise, the payor has no implied right to be consulted on the amount of cost incurred. (34)

An obligation to pay college expenses under a court order does not require the payor to pay tuition and other expenses forever. The court should therefore set a time as to when the expenses terminate. (35)

Breaks from the college routine, such a year off for travel or work, will generally not terminate the support obligation. (36) Of course, the support obligation should be suspended during any period in which the child is not actually in school. If the obligation does not terminate, however, it resumes when the child is once again a student. (37)

If a separation agreement requires payment of college expenses, there is no express time limit on the payor's liability. In theory, if the child took one course per year for two decades, nothing would prevent liability. When the agreement contains an express time limit, that limit will be respected. Two types of limits appear in the cases. First, some agreements state the limit in terms of years. These agreements are so obviously enforceable that no one has never contended to the contrary. Second, some agreements state the limit in terms of age of the children. An agreement to pay the expenses of minor children, for instance, would not include expenses after the age of majority. This type of agreement obviously is seen only in those few states where the age of majority is higher than eighteen. Where the agreement stated only that the father would pay the college expenses of the "children," a New York court held that the term was ambiguous, and remanded for consideration of extrinsic evidence. (38) Another court held that an agreement to pay the expenses of "children" did not permit termination of support at age 21. (39)

A parent is required to pay college support only as long as the child actually benefits from college. Thus, support should not be awarded if the child's pre-college grades show that the child will probably do poorly at college; and support should be terminated if the child's college grades show that the child is actually doing poorly at college. For this reason, in those cases where college costs are awarded pursuant to statute, it is error to award college support without some evidence in the record of the child's aptitude for college. (40) Even so, courts have often awarded support to children whose grades are average or even worse. (41) When a child begins to fail classes, however, college costs may be denied or terminated. (42)

In the contractual setting, when the contract is silent on the child's course load or academic performance, the court should not imply a condition that the child maintain some minimum level of grades or credit hours. (43) Express provisions requiring a minimum standard of academic performance are generally enforceable, (44) however, and provisions requiring maintenance of a stated grade-point average are construed to refer to the child's total average over his or her entire period of college attendance, and not to each semester individually. (45)

Provisions requiring the child to be a full-time student are also generally enforceable. Where the child was forced to work for a semester because of the payor's wrongful failure to meet a college support obligation, one court understandably refused to permit the payor to invoke such a provision. (46)

The first step in determining the affordability of college support is obviously to consider the defendant parent's financial resources. In addition, because the crucial point is reasonable affordability, the court must determine not only that the defendant can and should make a contribution, but also how much that contribution should be. (47)

Generally, the courts have ordered college costs when it is affordable, even though there may be some reduction is the defendant parent's standard of living, so long as the amount of the reduction is reasonable. (48) In essence, the affordability of a college education then depends upon the balance between income and reasonable expenses. Where the former exceeds the latter, or in any event where the income of the payor is substantial, there is generally some ability to pay. (49) When, however, reasonable expenses exceed income, most of the cases find that college support is not reasonably affordable. (50) Of course, in addition to considering the defendant parent's financial resources, the court must also consider the financial resources of the other parent. Where both parents have sufficient financial ability, the court will ordinarily require both of them to contribute to college costs. (51)

In order to receive college support, the child must make a reasonable effort to earn income. Where no such effort is made, the court can decline to award support. (52) Further, the child must also take all reasonable steps to obtain scholarships, loans, and other financial aid. Where this duty is not complied with, the court may refuse to award support. (53) There is not, however, an absolute duty to obtain financial support. In Bedford v. Bedford, (54) the child was accepted at one school and filed an ap- plication for financial aid. While the application was pending, he was accepted at a second school. Because the child preferred the first school, he did not file an application for financial aid at the second school. The first school ultimately denied financial aid, and the child chose to attend the second school, reasoning that without financial aid the first was simply too expensive. By the time the child made this choice, it was too late to obtain aid from the second school. The court held that the failure to obtain aid was reasonable under the circumstances.

In the contractual setting, if the agreement requires payment of expenses without making reference to the payor's financial ability, the payor's financial ability is irrelevant to the obligation. (55)

Some college expense clauses contain an express provision requiring the payor to contribute toward the expenses only if his financial condition so permits at the time when the child actually attends college. Where the agreement does not include a specific test, the court will make its own objective determination of ability to pay. (56) Where the agreement stated quite expressly that the father would be the sole judge of his own ability to pay, one court held there was effectively no enforceable obligation. (57)

Where the agreement speaks in terms of good faith or reasonable costs, the court will look its own objective definition of these terms, and not to the obligor's own subjective definition. (58) The cases are split on whether ability to pay can be considered as one factor in determining reasonable costs. (59)

Courts are generally reluctant to construe financial ability provisions to place automatic limits upon support, preferring instead to evaluate the payor's entire financial condition. For example, where college support was "based upon" the husband earning an annual income of $55,000, the court held that the agreement set the baseline for modification under the changed circumstances test, but that it did not absolutely require reduction in a father's obligation if income dropped below the stated level. (60)

The payor cannot avoid paying college expenses under a financial ability provision if his or her financial problems are self-inflicted for the bad faith purpose of reducing support. In other words, in determining ability to pay, the court can follow normal imputation of income principles. If the payor did not act in bad faith, however, self-inflicted financial ability can be considered. (61)

Along similar lines, where the payor completely refuses to provide any information on his or her income and assets, the court may assume that the amount of costs involved is reasonable. (62) If the agreement requires payment of expenses without mentioning need, lack of need is not a defense to the obligation. (63)

When the agreement is silent, the payor's obligation is not reduced merely because the child received financial assistance from another source. (64) If the agreement anticipates that the child will get financial assistance, however, that assistance reduces the payor's liability. (65)

Further, when the agreement is silent on the child's contributions, the obligor must pay the entire cost of college. Neither the child or the other parent is under any duty to make his or her own contributions. (66) Courts look with favor, however, upon specific provisions requiring contribution by the child. Thus, these provisions are generally enforced. (67) Courts are reluctant, however, to hold that the expenses of one child must be paid with the college expense funds of another. (68)

College support agreements are probably one of the most common clauses in separation agreements. It is important to understand these principles in order to draft a more comprehensive and enforceable agreement.

1. The age of majority in the District of Columbia, Indiana, Mississippi, and New York is 21. See, e.g., Stokes v. Martin, 596 So. 2d 879 (Miss. 1992); Setford v. Cavanaugh, 175 A.D.2d 665, 572 N.Y.S.2d 591 (1991).

2. Ala. Code § 30-3-1; Haw. C.S.G.; 750 Ill. Law Con. Stat. § 5/513; Ind. Code § 31-1-11.5-1-12(b); Iowa Code Ann. § 598.1(2); Mass. C.S.G.; Mo. R. Civ. Pro. 88.01; N.Y. Dom. Rel. Law § 240(1-b)(c)(7); N.D. Cent. Code § 14-09-08; Or. Rev. Stat. § 107.275(1)(e); Wash. Rev. Code Ann. § 26.19.090.

3. Gnirk v. Gnirk, 134 N.H. 199, 589 a.2d 1008 (1991); Newburgh v. Newburgh, 88 N.J. 529, 443 A.2d 1031 (1982); Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979).

4. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995).

5. Bayliss v. Bayliss, 550 So. 2d 986 (Ala. 1989); Monroe v. Monroe, 23 Fam. L. Rep. (BNA) 1302 (D.C. Super. Ct. Fam. Div. 4/21/97); Kujawinski v. Kujawinski, 71 Ill. 2d 563, 376 N.E.2d 1382 (1978); Neudecker v. Neudecker, 566 N.E.2d 557 (Ind. Ct. App. 1991); In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980); In re Marriage of Kohring, 999 S.W.2d 228 (Mo. 1999); LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993); In re Marriage of Crocker, 157 Or. App. 651, 971 P.2d 469 (1998); Childers v. Childers, 89 Wash. 2d 592, 575 P.2d 201 (1978).

6. E.g., Winset v. Fine, 565 So. 2d 794 (Fla. DCA 1990); Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979).

7. For specific cases enforcing an agreement to pay "reasonable" costs, see Yarbrough v. Motley, 579 So. 2d 684 (Ala. Civ. App. 1991) ("reasonable" expenses); Harvey v. Daddona, 29 Conn. App. 369, 615 A.2d 177, 178 (1992) ("reasonable costs"); Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) ("reasonable expenses"). For cases enforcing other vague language, see In re Pierce, 95 B.R. 154 (N.D. Cal. 1988) ("educational expenses"); Stevens v. Stevens, 798 S.W.2d 136, 137 (Ky. 1990) (contract declared father's "intention" to pay college expenses in an amount to be agreed upon by father and child); Smith v. Smith, 159 A.D.2d 929, 553 N.Y.S.2d 243, 244 (1990) ("all sums necessary or desirable" for support of child included college expenses); Stefani v. Stefani, 166 A.D.2d 577, 560 N.Y.S.2d 862 (1990) (father require to pay expenses only if "financially able"). But see Rosen v. Rosen, 105 N.C. App. 326, 413 S.E.2d 6, 8 (1992) (maverick decision holding that expenses "reasonably incurred in the obtaining of an undergraduate college degree" was too vague to be enforced).

8. Madson v. Madson, 636 So. 2d 759, 760 (Fla. Dist. Ct. App. 1994).

9. See Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994) (agreement to agree on living allowance for child at college could not be enforced); Chesler v. Bronstein, 176 Misc. 2d 237, 672 N.Y.S.2d 82 (1997) (general promise to pay school tuition was intended to refer to private school, and not college; child was two years old when agreement signed).

10. See Stevens v. Stevens, 798 S.W.2d 136, 137 (Ky. 1990) (agreement stating father's "intention" to pay college expenses, in an amount to be agreed upon by father and child, created an enforceable obligation); Mottley v. Mottley, 729 So. 2d 1289, 1289 (Miss. 1999) (promise to pay "educational expenses" applied to college, even though college was not specifically mentioned; over a strong dissent); cf. Hoefers v. Jones, 288 N.J. Super. 590, 672 A.2d 1299 (Ch. Div. 1994), aff'd per curiam, 288 N.J. Super. 478, 672 A.2d 1177 (App. Div. 1995) (father agreed to pay private school tuition if "both parties agree," provided that "the issue must be discussed between the parties on an annual basis"; agreement stated an enforceable obligation).

11. Kent v. Kent, 587 So.2d 409 (Ala. Ct. App. 1991); In re Sandlin, 113 Or. App. 48, 831 P.2d 64 (1992).

12. Milne v. Milne, 383 Pa. Super. 177, 557 A.2d 854 (1989); Kopp v. Turley, 359 Pa. Super. 106, 518 A.2d 588 (1986).

13. In re Pearson, 111 Ill. 2d 545, 490 N.E.2d 1274 (1986); Pharoah v. Lapes, 391 Pa. Super. 585, 571 A.2d 1070 (1990).

14. Gibb v. Triezenberg, 188 Ill. App. 3d 695, 544 N.E.2d 444 (1989); cf. Bayliss v. Bayliss, 575 So. 2d 1117 (Ala. Ct. App. 1990) (father had recommended state university when child was considering college).

15. Tiffany v. Tiffany, 1 Va. App. 11, 332 S.E.2d 796 (1985); Giacalone v. Giacalone, 876 S.W.2d 616 (Ky. Ct. App. 1994) (husband's right to "participate" in deciding whether child attended parochial high school did not give absolute right of approval).

16. Bender v. Bender, ___ Pa. Super. ___, 715 A.2d 1199 (1998).

17. See Hartle v. Cobane, 228 A.D.2d 756, 643 N.Y.S.2d 726 (1996) (father not required to pay expenses for summer school, as he had clearly and expressly refused to approve then); Cooper v. Farrell, ___ A.D.2d ___, 566 N.Y.S.2d 347 (1991) (where father had right to make final selection of school, father could not be forced to contribute toward private school he had not chosen); Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 762 (1994) ("Both parents shall agree on the college of attendance"); Harris v. Woodrum, 3 Va. App. 428, 350 S.E.2d 667, 668 (1986) ("subject to the approval of the particular school").

18. 105 Ohio App. 3d 159, 663 N.E.2d 944, 945 (1995).

19. See also Harris v. Woodrum, 3 Va. App. 428, 350 S.E.2d 667, 668 (1986) (recognizing express requirement in agreement that father's approval not be unreasonably withheld).

20. See Morris v. Morris, 251 A.D.2d 637, 676 N.Y.S.2d 202 (1998) (enforcing provision limiting father's liability to costs as State of New York University System).

21. In re White, 299 S.C. 406, 385 S.E.2d 211 (Ct. App. 1989).

22. Hooker v. Hooker, 593 So. 2d 1023 (Ala. Ct. App. 1991).

23. In re Hull, 491 N.W.2d 177 (Iowa Ct. App. 1992).

24. Kiev v. Kiev, 454 N.W.2d 544 (S.D. 1990); see also Meek v. Warren, 726 So. 2d 1292 (Miss. Ct. App. 1998).

25. See Baker v. Baker, 68 Ohio App. 3d 402, 588 N.E.2d 944, 946 (1990) (payor was responsible for both "general fee" and "undergraduate fee"); Meek v. Warren, 726 So. 2d 1292, 1294 (Miss. Ct. App. 1998) ("lab fee").

26. Reynolds v. Diamond, 605 So. 2d 525 (Fla. Dist. Ct. App. 1992); Meek v. Warren, 726 So. 2d 1292 (Miss. Ct. App. 1998); Shea v. McFadden, 227 A.D.2d 543, 642 N.Y.S.2d 963 (1996); Allyn v. Allyn, 163 A.D.2d 665, 558 N.Y.S.2d 983 (1990); Wiegand v. Wiegand, 349 Pa. 517, 37 A.2d 492 (1944) (unless payor is of limited means); Kiev v. Kiev, 454 N.W.2d 544 (S.D. 1990); Douglas v. Hammett, 28 Va. App. 517, 507 S.E.2d 98, 102 (1998) ("A student could not attend college in a vacuum"). But see Uram v. Uram, 65 Ohio App. 3d 96, 582 N.E.2d 1060, 1061 (1989) ("costs of ... college ... including the costs of such items as tuition, fees and books" did not include room and board).

27. Legg v. Legg, 44 Conn. App. 303, 688 A.2d 1354 (1997); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347 (1993).

28. Goss v. Timblin, 424 Pa. Super. 216, 622 a.2d 347 (1993).

29. Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994).

30. Meek v. Warren, 726 So. 2d 1292, 1294 (Miss. Ct. App. 1998) ("educational expenses"); McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239, 240 (1993) ("college expenses"); Douglas v. Hammett, 28 Va. App. 517, 507 S.E.2d 98, 100, 102 (1998) ("expenses for college education" required payment of clothing costs, on the theory that "one does have to be clothed for class").

31. Taplin v. Taplin, 611 So. 2d 561 (Fla. Dist. Ct. App. 1992).

32. Kaltwasser v. Kearns, 235 A.D.2d 738, 653 N.Y.S.2d 147 (1997) (child's extracurricular soccer expenses were not covered under agreement to pay private school tuition).

33. See Simpkins v. Simpkins, 595 So. 2d 493, 494 (Ala. Ct. App. 1991) ("pay for the college education"; father liable for tuition at expensive private university); Hartley-Selvey v. Hartley, 261 Ga. 700, 410 S.E.2d 118, 119 (1991) ("any and all college expenses"); Forstner v. Forstner, 68 Ohio App. 3d 367, 588 N.E.2d 285 (1990).

34. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991).

35. Hocutt v. Hocutt, 591 So. 2d 881 (Ala. Ct. App. 1991); Kent v. Kent., 587 So. 2d 409 (ala. Ct. App. 1991).

36. See Sovey v. Sovey, 30 Ill. App. 3d 690, 333 N.E.2d 299 (1975) (student took a year and one-half off midway through his junior year); Thiele v. Thiele, 479 N.E.2d 1324 (Ind. Ct. App. 1985) (one and one-half year break after first semester of college); Sakovits v. Sakovits, 178 N.J. Super. 623, 429 A.2d 1091 (Ch. Div. 1981) (break does not per se terminate support). A break is especially unlikely to terminate support where it was caused by the defendant parent's refusal to pay support. See DeMichieli v. DeMichieli, 585 N.E.2d 297 (Ind. Ct. App. 1992) (two-year break caused by father's nonpayment). Cf. Ind. Code Ann. 31-1-11.5-12(d)(3)(B) (Burns Supp. 1992) (break of more than four months terminates support as a matter of law).

37. See Khalaf v. Khalaf, 58 N.J. 63, 275 A.2d 132 (1971) (award can be modified if child leaves college).

38. Cortese v. Redmond, 199 A.D.2d 785, 605 N.Y.S.2d 506, 507 (1993).

39. In re Wisdom, 833 P.2d 884, 886 (Colo. Ct. App. 1992).

40. E.g., Hooker v. Hooker, 593 So. 2d 1023 (Ala. Ct. App. 1991); Kent v. Kent, 587 So. 2d 409 (Ala. Ct. App. 1991) (child had 3.2 grade average in high school); Cavazzi v. Cavazzi, 597 N.E.2d 1289 (Ind. Ct. App. 1992); Haimowitz v. Gerber, 153 A.D.2d 879, 545 N.Y.S.2d 599 (1989) (in high school, child earned Bausch and Lomb medal for science and math). Cf. Hill v. Hill, 841 P.2d 722 (Utah Ct. App. 1992) (poor academic performance no defense where support duty is based on contract); Schmucker v. Hanno, 377 Pa. Super. 301, 547 A.2d 379 (1988), allocatur denied, 522 Pa. 577, 559 A.2d 38 (1989) (same; if parties had intended to require a minimum academic performance, contract should have said so).

41. See DeMichieli v. DeMichieli, 585 N.E.2d 297 (Ind. Ct. App. 1992) (child's grades were below average, but child had not been placed on probation or otherwise disciplined for poor performance); Kerr v. Kerr, 278 S.C. 191, 293 S.E.2d 704, 706 (1982) (overall passing and satisfactory grades).

42. Marino v. Marino, 411 Pa. Super. 424, 601 A.2d 1240 (1992).

43. See Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. Dist. Ct. App. 1988) (error to imply condition that child must take 15 credit hours per semester and maintain a 2.0 grade point average), review denied, 560 So. 2d 232 (Fla. 1990).

44. See Burtch v. Burtch, 972 S.W.2d 882, 887 (Tex. Ct. App. 1998) (provision requiring the child be "in good standing" at university was not too vague to be enforced).

45. Burtch v. Burtch, 972 S.W.2d 882, 887 (Tex. Ct. App. 1998) (where agreement required child to maintain a C average, provision would be satisfied if child's cumulative average was C or better, even if child's average for one particular semester was a D).

46. Burtch v. Burtch, 972 S.W.2d 882 (Tex. Ct. App. 1998).

47. Thrasher v. Wilburn, 574 So. 2d 839, 841 (Ala. Ct. App. 1990); Cavazzi v. Cavazzi, 597 N.E.2d 1289 (Ind. Ct. App. 1992); Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 1038 (1982); Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652, 654 (1979).

48. Kent v. Kent, 587 So. 2d 409 (Ala. Ct. App. 1991); Thrasher v. Wilburn, 574 So. 2d 839, 841 (Ala. Ct. App. 1990); Haimowitz v. Gerber, 153 A.D.2d 879, 545 N.Y.S.2d 599 (1989); Bedford v. Bedford, 386 Pa. Super. 349, 563 A.2d 102, 108 (1989) (while support cannot be ordered if it would constitute an undue hardship on the payor, that does not mean that father cannot be required to make any personal sacrifices to help support his son through college ). DeWalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508 (1987).

49. E.g., In re Lindberg, 462 N.W.2d 698 (Iowa Ct. App. 1990) (father with income of $34,000 could reasonably afford to contribute $300 per month); Khalaf v. Khalaf, 58 N.J. 63, 275 A.2d 132 (1971) (father's income was $29,500 and mother was unemployed; substantial support awarded); Hughes v. Hughes, 280 S.C. 388, 313 S.E.2d 32 (Ct. App. 1984) (where father earned income of $42,000, proper to award support). Cf. Jones v. Philpot, 591 So. 2d 864 (Ala. Ct. App. 1991) (father had income of $1,516 and expenses of $1,300 per month; error to award college support); Boruff v. Boruff, 602 N.E.2d 180 (Ind. Ct. App. 1992) (mother had $70 excess of income over expenses as well as $14,000 in savings, but faced substantial medical and housing bills; proper not to award support).

50. See Berry v. Berry, 579 So. 2d 654 (Ala. Ct. App. 1991) (father's annual income was $12,000, while mother's was $18,000; error to award support); Ragazzo v. Murray, 175 A.D.2d 247, 572 N.Y.S.2d 713, 715 (1991) (improper to award support where father was heavily burdened with debt ); Kelly v. Kelly, ___ S.C. ___, 423 S.E.2d 153 (1992) (where mother was unemployed and under a doctor's care, she was not able to pay college support). Cf. Ross v. Ross, 167 N.J. Super. 441, 400 A.2d 1233 (Ch. Div. 1979) (where father's income was $16,000 and mother's income was $12,000, father could be ordered to pay $17.50 per week in support); LeClair v. LeClair, ___ N.H. ___, 624 A.2d 1350 (1993) (trial court properly held that father could afford to pay college support using proceeds from sale of his business and real estate); Hughes v. Hughes, 280 S.C. 388, 313 S.E.2d 32 (Ct. App. 1984) (support can be paid from assets).

51. Kent v. Kent, 587 So. 2d 409 (Ala. Ct. App. 1991) (father earned $47,000 per year while the wife earned $10,000; because the wife had some ability to pay, the court required the father to pay only 60% of college costs); In re Olson, 223 Ill. App. 3d 636, 585 N.E.2d 1082, 1094 (1992) (where father had superior abilities to generate financial resources, proper to charge him with 75% of college costs); In re Richards, 439 N.W.2d 876 (Iowa Ct. App. 1989); Connolly v. Connolly, 83 A.D.2d 136, 443 N.Y.S.2d 661 (1981) (remanding to consider mother's financial resources).

52. Ross v. Ross, 167 N.J. Super. 441, 400 A.2d 1233 (Ch. Div. 1979) (awarding support; considering among other things the fact that child worked 15 hours per week); Miller v. Miller, 353 Pa. Super. 194, 509 A.2d 402 (1986) (error not to consider child's contributions); Wagner v. Wagner, 285 S.C. 430, 329 S.E.2d 788 (1985) (child's contributions through income and loans are a relevant factor) McDuffie v. McDuffie, ___ S.C. ___, 418 S.E.2d 331 (Ct. App. 1992); Hughes v. Hughes, 280 S.C. 388, 313 S.E.2d 32 (Ct. App. 1984).

53. Kelly v. Kelly, ___ S.C. ___, 423 S.E.2d 153 (1992) (awarding no support; considering among other factors the child's failure to apply for college loans); McDuffie v. McDuffie, ___ S.C. ___, 418 S.E.2d 331 (Ct. App. 1992) (where child made no effort to borrow money to cover gap between partial scholarship and college costs, no support need be awarded).

54. 386 Pa. Super. 349, 563 A.2d 102 (1989).

55. Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994).

56. See, e.g., Stefani v. Stefani, 166 A.D.2d 577, 560 N.Y.S.2d 862, 863 (1990) (father required to pay if "financially able"; father had net annual income of $23,500; father had ability to pay total of $21,500 in expenses spread over six years, but payment of interest on this amount would be unduly burdensome); Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994); Whelan v. Frisbee, 29 Mass. App. Ct. 76, 557 N.E.2d 55, 57 (1990) (mother promised to contribute "in good faith" toward her children's college expenses; where mother had borrowed $100,000 to invest in questionable business, mother should have made a contribution under the agreement); Regan v. Regan, 254 A.D.2d 402, 678 N.Y.S.2d 673, 674 (1998) (promise to pay college costs "if ... his financial circumstances permit"; finding this test met on the facts); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347, 348 (1993) (parties promised to "assist the children to obtain a college education to the best of their ability"; finding that husband had ability to contribute).

57. Charles v. Leavitt, 264 Ga. 160, 442 S.E.2d 241 (1994).

58. Harvey v. Daddona, 29 Conn. App. 369, 615 A.2d 177, 178 (1992) ("reasonable costs" did not mean only those costs which the father deemed reasonable).

59. Compare Carlton v. Carlton, 670 So. 2d 1129 (Fla. Dist. Ct. App. 1996) (relevant) with Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994) (not relevant).

60. See In re Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559 (1994).

61. See In re Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559 (1994) (payor imprisoned for tax evasion; inability to pay was a factor).

62. Bender v. Bender, ___ Pa. Super. ___, 715 A.2d 1199 (1998).

63. Frank v. Frank, 402 Pa. Super. 458, 587 A.2d 340 (1991).

64. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991) (costs paid by student loans); Frank v. Frank, 402 Pa. Super. 458, 587 A.2d 340 (1991) (costs paid in part by funds from wife's family trust; husband not entitled to be reimbursed for paying the same expenses). But see Regan v. Regan, 254 A.D.2d 402, 678 N.Y.S.2d 673 (1998) (father was not liable to the extent costs were paid with a gift from child's grandfather); Douglas v. Hammett, 28 Va. App. 517, 507 S.E.2d 98, 100, 102 (1998) (father not liable for expenses covered by child's full basketball scholarship).

65. See Morris v. Morris, 251 A.D.2d 637, 676 N.Y.S.2d 202 (1998) (enforcing provision making father liable only for costs beyond loans and grants); Hartle v. Cobane, 228 A.D.2d 756, 643 N.Y.S.2d 726 (1996) (agreement provided that parties would encourage the child to obtain financial aid; father was liable only for costs above amount of student loans). Cf. Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) (father agreed to pay costs above "scholarship, grant or other assistance"; father had to pay costs reflected by student loans).

66. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991); Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994); McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239 (1993).

67. See Troha v. Troha, 105 Ohio App. 3d 327, 663 N.E.2d 1319 (1995) (agreement to pay college expenses with existing college funds of children could not be enforced directly, as children were not parties to the contract; but depletion of college funds construed as a condition to father's liability for further sums). Cf. Douglas v. Hammett, 28 Va. App. 517, 507 S.E.2d 98, 100, 102 (1998) (to the extent that child had duty to work, that duty did not apply on the facts, where child received a full basketball scholarship, but one condition of such a scholarship was that the child not work).

68. See Troha v. Troha, 105 Ohio app. 3d 327, 663 N.E.2d 1319, 1324 (1995) (requirement that children's funds be used for "their college education" required that each child's funds be used for that child, and not the both children's funds be used for the first child alone).

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