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A switch in justices revives previous South Carolina law on college support

Less than two years ago, the South Carolina Supreme Court, in Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), overruled Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) and its progeny, and held that South Carolina case law allowing the family court to require divorced or unmarried parents to contribute college support to be an unconstitutional violation of equal protection.  I’m not claiming clairvoyance but when I blogged on Webb, I concluded:

 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.

Less than two years later, in the March 7, 2012 decision of McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012), the South Carolina Supreme Court answers that issue and reinstates the South Carolina family court’s authority to require college support contributions from unmarried or divorced parents.  The four justices who remain from the Webb panel held the same way that they’d held in Webb.  It was the replacement of Waller for Hearn, who wrote McLeod’s majority opinion, that led to this 180 degree different result which concluded:

 Risinger does not violate the Equal Protection Clause because there is a rational basis to support any disparate treatment Risinger and its progeny created.  In fact, the case before us particularly demonstrates the need for a rule permitting an award of college expenses in certain circumstances in order to ensure children of divorce have the benefit of the college education they would have received had their parents remained together.  Accordingly, we reverse the order of the family court and remand this matter for a determination of whether and in what amount Father is required to contribute to Collin’s college education under the law as it existed prior to Webb.

Emphasis added.

In finding there was a rational basis to require unmarried or divorced parents to contribute college support, when there was no such requirement for married parents to do so, the majority noted:

 This State has a strong interest in the outcome of disputes where the welfare of our young citizens is at stake.  As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society.  It is entirely possible that most parents who remain married to each other support their children through college years.  On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved. Therefore, it may very well be that Risinger sought to alleviate this harm by minimizing any economic and educational disadvantages to children of divorced parents.  There is no absolute right to a college education, and section 63-3-530(A)(17), as interpreted by Risinger and its progeny, does not impose a moral obligation on all divorced parents with children.  Instead, the factors identified by Risinger and expounded upon in later cases seek to identify those children whose parents would otherwise have paid for their college education, but for the divorce, and provide them with that benefit.

Citations omitted.

The final sentence of that section seems to read a requirement into Risinger and its progeny that college support can only be ordered for “those children whose parents would otherwise have paid for their college education, but for the divorce.”  My recollection of pre-Webb jurisprudence is that this requirement was routinely rejected by the family courts, who wouldn’t consider a divorced parent’s good-faith reasons (the child’s a spendthrift, lazy, or disrespectful) for refusing college support.

In overruling Webb, the Supreme Court seemed minimally concerned with stare decisis, even reaching the constitutional issue when it didn’t need to do so:

 We are not unmindful of Mother’s alternate argument that Father separately agreed to pay for Collin’s college expenses.  Although we are cognizant of our hesitancy to reach constitutional questions when it is not necessary, there is no cogent reason to let the error in Webb persist.

The Supreme Court also found that Father was not entitled to a retroactive adjustment in his child support, as it found the figures used by the court in setting temporary support had been the proper figures at that time.  If further remanded the matter for reconsideration on Mother’s request for attorney’s fees based upon the changed results on appeal.

I can’t claim surprise from the McLeod decision, as most states that have considered the issue of whether requiring divorced or unmarried parents to provide college support for their children violates equal protection have found that it doesn’t.  However, I consider it poor jurisprudence to require any post-majority support, as such support confuses legal obligations with moral obligations.  It is interesting that Judge Beatty dissent focuses on this concern:

In my opinion, this was in error as a parent’s only financial responsibility for a child’s college expenses emanates from a moral obligation.

In reaching its decision, the majority seizes upon this moral obligation.  A moral obligation, however, cannot substantiate the imposition of a legal obligation.  Although I am cognizant of the deleterious financial and emotional effects of divorce, these alone do not justify disparate treatment of children of divorced families and children of intact families.  The children are similarly situated in that they are over the age of eighteen and desire parental financial support for college education.

While the majority in McLeod left open the issue of whether Risinger was incorrectly decided on statutory construction grounds, the opinion offers little hope for such a challenge:

 Over thirty years ago, Risinger held the predecessor to section 63-3-530(A)(17) permits a family court to award college expenses if certain criteria are met.  Since Risinger, the statutes conferring jurisdiction on the family court have been amended repeatedly, yet the General Assembly never limited Risingerapplication.  The Legislature is presumed to be aware of this Court’s interpretation of its statutes. When the General Assembly failed to amend this section over the course of three decades, its inaction is evidence it agrees with this Court’s interpretation.  At this juncture, we are therefore unwilling to agree with the dissent’s sua sponte conclusion that the General Assembly never intended to give the family court jurisdiction to order the payment of college tuition as an incident of child support.  Due to the General Assembly’s tacit approval of Risinger for over thirty years and the fact its construction has never been challenged, not even in this case, reaffirming this principle does not amount to legislating from the bench or a cavalier disregard of the Legislature’s express limitations on the family court’s jurisdiction as the dissent suggests.  If the dissent’s assessment of legislative intent were correct, we are confident the General Assembly would have amended the jurisdictional statutes accordingly since 1979.

Citations omitted.

For now, it appears that South Carolina authorizes the family court to require unmarried or divorced parents to contribute college support for their children, even private school support (see footnote 8 of McLeod).  It remains to be seen how much and how strongly the family court upholds McLeod’s apparent requirement of a showing that, but for the divorce, the parent would have provided college support.  However, I suspect that this aspect of McLeods majority opinion will be overlooked, just as it was apparently overlooked prior to Webb.

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