N.B.: On March 7, 2012, in McLeod v. Starnes, the South Carolina Supreme Court overruled Webb v. Sowell and the South Carolina Family Courts can again order unmarried or divorced parents to contribute college support for their children. See A switch in justices revives previous South Carolina law on college support
The April 19, 2010 Supreme Court decision in Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), was long anticipated: it was argued in January 2009 and my blog mentioned the appeal in September, 2009. The result is a complete surprise: South Carolina joins a handful of states that have found requirements that some, but not all, parents be subject to court-ordered college expense obligations for their adult children to be unconstitutional.
Webb involved a divorced father’s challenge to South Carolina law that allows the family courts to order some parents to be subject to college support obligations. South Carolina’s Supreme Court first established this obligation in the case of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) which interpreted the “exceptional circumstances” language in a precursor statute to S.C. Code Ann. § 63-3-530(A)(17) to authorize such support obligations. The applicable statute subsection grants the family court authority:
(17) To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first; or without further order, past the age of eighteen years if the child is enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.
Risinger and subsequent cases had interpreted the “exceptional circumstances” language to allow a family court to order college support if the child at issue was not from an intact family. Since children from intact marriages weren’t subject to such support orders, the effect of these cases was to allow the court to order college support when an adult child’s parents were never married, or were separated or divorced, but did not allow the court to order college support when an adult child’s parents were still in an intact marriage.
Mr. Webb brought an equal protection challenge to this disparate treatment arguing that the statute and case law improperly treated divorced and non-divorced parents differently when it came to college support obligations for their children. At the outset of the hearing on the mother’s request that he contribute expenses for their son’s college, he moved to dismiss her claim based on the Equal Protection clause of the federal and state constitutions. In an order denying Mr. Webb’s motion, the family court observed:
While the Court has reviewed the motion with some interest and follows the logic proposed by the Plaintiff, the Court is bound by the case of Risinger v. Risinger and its progeny and therefore determines that until there is further ruling by either the Court of Appeals or the Supreme Court, it is appropriate in this instance to require the Plaintiff to contribute to the support of his son’s college education. Therefore, the Plaintiff’s motion to dismiss on the constitutional grounds is denied.
In a 3-2 decision, the Supreme Court reversed, finding that Risinger was wrongly decided and that S.C. Code Ann. § 63-3-530(A)(17), as interpreted, is unconstitutional. In so ruling, the Supreme Court decided that the constitutionally suspect class was “those parents subject to a child support order at the time of the child’s emancipation.” The majority could “discern no rational basis for the varied treatment of the class as compared to those parents who are not subject to such an order. We therefore find that the statute, as interpreted by Risinger, fails the rational basis test and thus, does not meet the constitutional requirements of Equal Protection.”
This equal protection argument is slightly different than ones I have seen in previous states and the one Mr. Webb actually argued in the family court. Those arguments focused on the distinction between parents of a college-aged child who were still in intact marriages to the child’s other parent and other such parents of college-aged children. Here, due to the peculiarities of § 63-3-530(A)(17), the Supreme Court raised a distinction between parents who were subject to a court-ordered child support obligation when their child emancipated and those who weren’t.
I have known since I began practicing family law in 1993 that there was a potential equal protection challenge to Risinger, as a few other states had found similar requirements that unmarried parents contribute to college expenses to be unconstitutional. However, never in my practice have I had a parent ordered to pay college support so I never had to bring such a challenge. Further, given how few states (in my admittedly-limited research) found such requirements violated equal protection, I doubted such a challenge could succeed in South Carolina. Kudos to Mr. Webb’s attorneys, Joe Wayne Underwood and Regina Hollins Lewis, for conceiving and prevailing on their challenge.
The Webb decision notes that its decision is confined only to post-secondary education support. It appears the family court still has authority “to provide for child support past age eighteen where there are physical or mental disabilities of the child,” as it did in Riggs v. Riggs, 353 S.C. 230, 236, 578 S.E.2d 3, 6 (2003). Further court-approved agreements of parents to provide for their children’s post-secondary education support appear to remain enforceable.
Finally, I note the Supreme Court’s 3-2 decision was with recently retired Justice John Waller in the majority and with new Justice Kaye Hearn not participating. Given Justice Hearn’s extensive family law practice prior to her elevation to the appellate court, it would be interesting to know if she would have ruled with the majority. Depending upon Justice Hearn’s views and the strength of this Court’s commitment to stare decisis, it may be that Webb itself is reconsidered or overruled at some point, and that the Supreme Court finds requiring divorced or unmarried parents to provide college support for their children does not violate equal protection.
If the Webb decision is subsequently reconsidered by the Supreme Court, Justice Kittridge’s dissent might become especially meaningful. He would have held that “legislative approval for the family court ordering a parent to contribute to his or her adult child’s college educational expenses is limited to children of separated, divorced, or unmarried parents.” He further would have limited the post-secondary education support obligation “to a South Carolina publicly supported college or university.” Kittridge’s views could well become the swing vote in any reconstituted majority.
If you are currently paying college support, you are welcome to click here to contact my office to find out how this decision impacts your obligation.