Thousands of superior court orders mandating that divorced parents contribute to their children's college expenses were made a little more permanent this month by a Supreme Court ruling in a case involving a divorced family with two elementary-school-age children. However, practitioners say the decision raises additional questions.

The court held that the recent passage of RSA 458:17, XI-a (child support orders may not dictate payment of an adult child's college expenses) does not require that courts vacate pre-existing orders directing payment of college expenses. The case is In the Matter of Donovan, 2004-228, April 1, 2005.

In dissent, Justice Linda S. Dalianis argued that all support orders, including those involving college costs, are modifiable for a substantial change in circumstances, including a substantial change in the law.

The split between the Supreme Court justices mirrors the split that has been ongoing at the superior court level. "Since the statute was passed [in 2002, effective in February 2004] judges and marital masters have handled the issue differently throughout the state," said family law practitioner Cathy McKay of Derry. "Some interpreted the statute to cut off their ability to enforce an order entered prior to the statutory change, finding the statute applied to all modified or reviewed support orders. Others enforced old stipulations/orders, but would not allow new stipulations on the issue."

The Supreme Court ruling was narrowly tailored to the issue on appeal-which was not the reasonableness of the pre-existing order, based on a stipulation, requiring that each party contribute to college expenses-but whether the trial court was required to vacate a pre-existing order. In other words, did the new statute have retroactive effect?

Justice James E. Duggan authored the majority opinion, which notes that the legislature was silent as to whether the statute would have retroactive effect. Because a child's right to receive financial support is substantive, rather than procedural, basic rules of statutory construction required that the court find the statute to have only prospective application, Duggan reasoned.

Practitioners are quick to note that the decision leaves the door clearly open to further legislative action.

In the meantime, the decision raises questions of its own. "The case advances the discussion [of college expenses] greatly, but, as is typical, creates other areas of discussion," McKay said. "Does this mean the Court can apply discretion and still vacate the provision, especially where the provision was the result of a contested hearing?"

Another family law practitioner, Graham P. Chynoweth, of Concord, said he wished the court had offered more guidance for future cases. "In my opinion, the decision is no real help in understanding what a trial court needs to weigh in making a decision," Chynoweth said. "The Donovan decision does mean the trial court will need to make [college expense] decisions on a case-by-case basis."

Donovan Facts

Tatjana and Robert Donovan were divorced in 2000; as part of the parties' permanent stipulation, they agreed to contribute to the children's educational expenses through college in an amount proportionate to their respective incomes at such time. Both parties were CPAs, but Tatjana had let her credentials lapse as she home schooled the couple's two children-both before and after the divorce.

Robert Donovan filed a motion to bring forward and modify in 2003, seeking (1) to reduce his child support obligation based on his own diminished earnings and Tatjana's voluntary underemployment, (2) to terminate his additional monthly payment for extracurricular activities, and (3) to eliminate, under RSA 458-C:2, IV(a), the parties obligation to contribute to college expenses.

The trial court (Barry, J.) granted a reduction in child support, but refused to terminate the extracurricular payment, or to eliminate the college expense obligation.

Finding that the evidence in the record did not support Robert's contention that Tatjana could in fact earn sufficient income to offset his child support obligation, and that the home schooling arrangement had been in place, by agreement of the parties, for at least eight years, the Supreme Court unanimously reversed the trial court's reduction in Robert's child support obligation.

Also unanimous was the Court's finding that In the Matter of Coderre & Coderre, 148 N.H. 401 (2002), prevents the trial court for awarding extracurricular expenses in addition to child support, absent a showing of special circumstances. Though the opinion notes that on remand, the lower court may consider whether the Donovan case involves special circumstances.

"After Coderre and Donovan, I'm not sure what special circumstances would allow a court to order one parent to pay more than the guideline amount," McKay said. "Some think that an extraordinarily large expense-like the cost of being a hockey goalie-might warrant an additional expense payment."

Dissenting Opinion

Dalianis dissented only on the issue of college expenses: "I believe that the issue before us is not whether RSA 458:17, XI-a requires trial courts to vacate all prior orders that provide for payment of children's college expenses," Dalianis wrote. "Rather, the issue is whether the new statute requires courts to vacate orders regarding payment of college expenses that are challenged after the effective date of the statute either by a motion to modify or by nonpayment by the obligor."

"I believe the new statute leaves courts with no choice but to relieve a parent, no matter how wealthy he or she might be, from any legal obligation to assist his or her adult child with college expenses," Dalainis continued. "An order for contribution to college expenses is a support order...and, as such, is modifiable for a substantial change in circumstances...including a change in the law [citations omitted]."

How marital masters will react to the decision in not yet clear; they are prevented from commenting on it while it is still an active case, according to Superior Court Chief Justice Robert Lynn.

Chief Justice John T. Broderick, and Justices Joseph P. Nadeau and Richard E. Galway concurred in the majority opinion.

See In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr., Docket No. 2004-288, April 1, 2005.

Deborah A. Fauver, a frequent contributor to the Bar News, practices with the law firm of Cooper, Deans & Cargill, in North Conway.

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