Tenn. Dad Must Not Pay Private School Tuition if Trust Funds Runs Out

Tennessee child support law case law summary on private school tuition from the Court of Appeals.

Jennifer Anne Kraus v. Barry Martin Thomas – Tennessee private school tuition

The husband and wife were married for fifteen years at the time of their divorce, and had four children, ages 7, 8, 10, and 12.  The father was 56 years old and employed as a satellite technician for a Nashville TV station, with a salary of about $50,000 per year.  He also had income of about $13,000 per year from an inherited IRA.

The wife was 44 years old and worked at the same TV station as reporter and weekend anchor.  Her income was substantially greater than the husband’s.

The wife initiated the divorce proceedings in 2008 and the final order was issued in 2012.  Under the permanent parenting plan, the wife was designated the primary residential parent, and she was awarded 280 days of parenting time.  The wife also had sole decision-making authority over education, health, and extracurricular matters.  The husband was ordered to pay $625 per month in child support initially, and this obligation increased to $1252 per month when the youngest child finished preschool.

Since the wife had decision-making authority over educational matters, it was her choice whether the children would remain in private school, and the father was ordered to apply to the school for financial aid.  They were both also required to seek assistance from a trust of which the husband and children were beneficiaries.  If the trustee of that trust did not fully pay the tuition and expenses, then the husband was ordered to pay 75% of the educational expenses, up to $16,875.  The wife also received 60% of the marital property and $50,000 in attorney’s fees.

The husband appealed to the Tennessee Court of Appeals on a number of grounds.  Among other things, he argued that he should not have been required to pay the private school tuition.  He argued that this large payment greatly exceeded his means, since it represented more than a fourth of his gross income.

During the marriage, the children had attended the private school.  Most of those expenses had been paid by a trust created by the husband’s aunt and grandmother.  Initially, that trust had contained $150,000, but it had been mostly depleted by the time of the divorce by the educational expenses.  At the time of the divorce, another trust still remained, but it had never been used for educational expenses.  While the trustee of that trust could possibly make distributions to pay those expenses, this was out of the control of the parties, and

the Court of Appeals noted that it could make no assumptions as to how the trustee would act.  Therefore, the Court needed to analyze the situation as a deviation from the child support guidelines.  The court noted that for this to be proper, the expense must be in the children’s best interest, but it must also be within the financial means of the parents.

The Court of Appeals held that this determination requires a “thorough analysis” of the parent’s ability to pay, and that there was nothing in the record to show that the trial court had made this thorough analysis.  In particular, the Court pointed out that this requires the trial court to divide such an expense according to each parent’s percentage of income.  This had not been done, since, as the Court pointed out, the mother had a higher income, but had been assessed a lower percentage of the expenses.

The Court pointed out that the husband’s total obligation, including the education expenses, was approximately $39,000 per year, with a gross income of $62,600, and that this amount greatly exceeded his means.  Therefore, the Court held that the obligation for education expenses would have to undergo a substantial reduction or elimination.

For these reasons, the Court held that the upward deviation in this case was improper, and reversed it.  It did hold, however, that the wife still had the decision-making authority, and that the husband was still required to apply for financial aid, and to apply to the trust for a distribution.  But he had no obligation to pay the tuition if those resources were unavailable.

The Court of Appeals also affirmed the amount of parenting time adopted by the trial court’s parenting plan, and the distribution of the marital property.  It did reverse the award of attorney’s fees to the wife, and denied her request for attorney’s fees for the appeal.

No. M2012-00877-COA-R3-CV (Tenn. Ct. App. June 7, 2013).

See original opinion for exact language.  Legal citations omitted.

For more information, see Private School Tuition in Tennessee Child Support Laws and Tennessee Child Support Answers to FAQ’s.  For legal updates, news, analysis, and commentary, visit our Tennessee Family Law Blog and its Child Support category.  A Memphis child support attorney from the Miles Mason Family Law Group can help you with setting or modifying child support. To schedule your confidential consultation about Tennessee child support, call us today at (901) 683-1850.