After Webb v. Sowell is any post eighteenth birthday child support constitutional?

Posted Wednesday, May 4th, 2011 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

In 2010, the South Carolina Supreme Court decision in Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010) found that South Carolina’s interpretation of S.C. Code § 63-3-530(17) to allow the family courts to order parents to pay college support for their adult children, but only when the parents were divorced, separated, or never married to the other, violated equal protection.  That decision contained what I considered intriguing language regarding that code section:

Because the statute only allows for the continuation of support beyond the age of 18, the effect of the Risinger [v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979)] decision is that a court may order a parent subject to a support order at the time his or her child reaches age 18 to pay college expenses. However, the statute grants the court no such power over a parent not subject to such an order, nor is there any common law duty on parents to pay for an adult child’s post-secondary education.

Webb, 387 S.C. at 331 (emphasis in original).

There are two things I found intriguing in this paragraph.  The first involves the right of the court to start child support after the child turns 18 if the child is still in high school.  S.C. Code § 63-3-530(17) grants the family court authority:

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.

To me, the language in this subsection isn’t clear whether the court’s authority to require child support if an eighteen year old is still enrolled in high school extends to its establishment or only its continuation.  However the language in Webb seems to indicate that it is only the continuation of such support that is authorized.

Earlier this week I employed this language from Webb in successfully convincing a family court judge not to establish child support for an eighteen year old who was still in high school.  Since, at most, the issue of whether the family court can only continue, as opposed to establish, child support for an eighteen year old still enrolled in high school will only involve one year of support, it is an issue that is unlikely to be appealed, and thus we may never get a definitive ruling from appellate courts on this issue.  Meanwhile, South Carolina family court attorneys should realize this is a potential challenge.

The other intriguing issue raised by that paragraph in Webb is its implication that any child support for a post-majority child that is not based upon a common law duty of support fails to pass constitutional muster.   Since there was no common law duty to educate one’s child through high school, it is possible that all court ordered child support for an eighteen year old still attending high school is unconstitutional.  If, at common law, there was no duty to support adult children with physical or mental disabilities, the provision allowing for such support might be unconstitutional.  If whatever “exceptional circumstance” is being used to justify post-majority support didn’t create that duty at common law, that too might not pass constitutional muster.

One caveat: Webb was a 3-2 decision and one member of Webb’s majority, Justice Waller, has been replaced by Justice Hearn.  Justice Hearn came from a family law practice and the family law bench before being elevated to the Court of Appeals and now the Supreme Court.  She is a very child oriented jurist.  Just this week she authored the 3-2 decision in Roe v. Reeves that is very child focused to the detriment of a biological father.  Future cases challenging the constitutionality of S.C. Code § 63-3-530(17) to require support for adult children might be resolved differently, as Justice Hearn and the two dissenters in Webb might try to limit or even overrule that case’s holding.


4 thoughts on After Webb v. Sowell is any post eighteenth birthday child support constitutional?

  1. Jay Elliott says:

    Greg, I agree with your interpretation, that if the child is under 18 and the action is one to extend support beyond that age to enable the youngster to attend college, then Webb would authorize such an action. I don’t know whether Webb is good law, but it is bad policy. The real devastation of divorce for children is economic. There’s a bunch of studies out there to confirm that, including at least one which indicates that children of divorce are much less likely to attend college than their college-educated parents.

    Judith S. Wallerstein Sandra Blakeslee and Julia M. Lewis found in a longitudinal study of children and divorce, that among the children of intact families, 90% had fathers contribute to college expenses; only 30% did so in divorced families. See, The Unexpected Legacy of Divorce: A 25 Year Landmark Study (Hyperion, 2000).

    I attended a presentation of hers at a national conference on child support sponsored by the American Bar Association. One of her findings was remarkable. Among children of divorced parents in Marin county, California, children of divorce were much less likely to attend a four year college than their college educated parents, opting instead to attend two year colleges or none at all. Now, Marin county is probably the most affluent, college educated population in the U.S. It is striking that this was the impact on that youthful population.

    A recent and more comprehensive study bears this out. In Contributions to College Costs by Married, Divorced and Remarried Parents, in the November 9, 2010 Journal of Family Issues, Ruth Lopez Turley and Matthew Desmond found that divorced parents were able or inclined to provide much less support for college to their children than their married, or even remarried counterparts. A New York Times article covers this study here: The Financial Impact of Divorce on College Students

  2. MJ says:

    Can you tell us where that study can be found? I’d like to read it.

  3. David DeVane says:

    All cases have differing facts but I believe that as a general rule it is a pretty sorry parent who will not support their child through the child’s high school years. I am not privy to the study mentioned by another of your responsive comments but after over 36 years of practice it has been my experience that indeed, those children who do not graduate from high school, especially where a divisive and acrimonious divorce has occurred do not succeed as well as their peers either educationally, vocationally or in their future relationships. I have practiced so long that I have handled numerous divorces for the children of parents for whom I had represented in a divorce action when they were young minors.

  4. DJ says:

    Is post minority child support for college education expenses required for an illegitimate child that the father has never met? All child support orders have been followed and are current in payments. The child is 8 months away from being of legal age. The custodial mother is now calling after no contact for 17 years and threatening an additional 4 years of college expenses.

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