LeClair v. LeClair

• Decision Date: 14 May 1993
• Docket Number: No. 91-564,91-564
• Citation: 137 N.H. 213,624 A.2d 1350
• Parties: , 82 Ed. Law Rep. 1120 Ronald O. LeCLAIR v. Erlyan LeCLAIR.
• Court: New Hampshire Supreme Court

Page 1350

624 A.2d 1350

137 N.H. 213, 82 Ed. Law Rep. 1120

Ronald O. LeCLAIR v. Erlyan LeCLAIR.

No. 91-564.

Supreme Court of New Hampshire.

May 14, 1993.

Douglas & Douglas, Concord (Charles G. Douglas, III, on the brief, and Caroline Douglas orally), for plaintiff.

Mazerolle & Frasca, P.A., Nashua (Stephen J. Frasca on the brief and orally), for defendant.

BROCK, Chief Justice.

The plaintiff, Ronald O. LeClair, appeals from a decree, recommended by the Marital Master (Martha W. Copithorne, Esq.), and approved by the Superior Court (Barry, J.), ordering him to contribute to the costs of his adult son's college education. We affirm.

The parties were divorced in April 1978, and have one son, Jeremy, who was five years old at the time of the divorce. The court did not enter a child support order against either party at that time. Jeremy lived with his father until he was sixteen, then he moved in with his mother. Jeremy began his freshman year at Babson College in the fall of 1991. The master found that although the defendant made efforts to discuss Jeremy's college plans with her former husband, their communication was so poor that the parties did not discuss Jeremy's choice of college prior to his decision to attend Babson.

In February 1991, the defendant filed a petition requesting that the court order the plaintiff to make a reasonable contribution toward Jeremy's college expenses. The plaintiff filed an answer alleging, among other things, that he did not have sufficient assets or income to make a substantial contribution toward such college expenses.

The master found that the total cost for tuition, room and board at Babson for the 1991-92 academic year was $22,900.00. She found that the total parental contribution for that academic year, after deducting student loans, grants, work study, Jeremy's savings, and contributions from Jeremy's paternal grandmother, would be $8,056.00.

The master reviewed the financial status of both parties and found that although the plaintiff was not receiving a salary from his nursery business, he was receiving returns on loans previously made to the business, and had received income from the sale of business assets. The master determined that the plaintiff's financial situation could improve substantially if he sold his real estate and nursery business pursuant to a then existing option agreement. The plaintiff was ordered to contribute $2,000.00 per academic year toward his son's education, for a total of four years, if he did not sell his real estate and business pursuant to the option agreement. If the option to purchase was exercised, each party's share of the remaining three years would be calculated by taking the total cost of attending the college, subtracting the "the loans, grants, [Jeremy's] expected financial contribution as determined by the college financial aid office, and gifts or grants from grandparents," and dividing the total remaining by half. Because the real estate and business has been sold, each party is responsible for the contributions under the formula just described.

The master granted the plaintiff's request to exclude from evidence the purchase and sales agreement because of a nondisclosure clause as to the sales price. The master reviewed the purchase and sales agreement in chambers and ordered no further disclosure of the contract price. She did provide, however, that "[i]n the event either party appeals this decision, the contract shall be submitted to the [supreme court] as an exhibit to be sealed." The plaintiff did not submit a copy of the option agreement to this court; thus, we rely on the master's finding, see Sup.Ct. R. 13(3); Cook v. Wilson Trucking Co., 135 N.H. 150, 157, 600 A.2d 918, 922 (1991), that in the event that the property was sold "the Plaintiff [would] have sufficient assets to contribute equally with the [defendant] to his son's college education."

The plaintiff argues that, with the passage of RSA 458:35-c, the legislature intended to eliminate the superior court's jurisdiction to order a divorced parent to contribute toward post-majority college expenses. Alternatively, he argues that the superior court did not have subject matter jurisdiction to award post-majority college expenses in a case where there was never an underlying child support order. We disagree.

The court's powers in custody, maintenance, and education of children in divorce and separation cases are conferred entirely by statute. Whipp v. Whipp, 54 N.H. 580, 582 (1874). RSA 458:17 provides the superior court with broad discretionary powers in relation to the support, maintenance, and custody of children of divorce:

"In all cases where there shall be a decree of divorce or nullity, the court shall make such further decree in relation to the support, education, and custody of the children as shall be most conducive to their benefit and may order a reasonable provision for their support and education."

RSA 458:17, I (1992). This provision has been a part of New Hampshire statutory law for over a century. See GS 163:11 (1867); RL 339:15 (1942). Until 1987, the statute further provided that the court had the power to place money in trusteeship for the "maintenance and education of the minor children," but did not contain any specific provision for the education of children who reached the age of majority. See GS 163:13 (1867); RL 339:17 (1942); RSA 458:20 (supp. 1987) (emphasis added); Guggenheimer v. Guggenheimer, 99 N.H. 399, 401-02, 112 A.2d 61, 63 (1955); Whipp, 54 N.H. at 581. In 1987, the legislature repealed and reenacted the trust fund statute, providing that:

"In a proceeding under this chapter, the court may set aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of either party or of any minor, dependent, or incompetent child of the parties. A separate fund or trust may also be established under this section for a child of the parties, who is 18 years of age or older, if the child is in college, and for an incompetent child of the parties who is 18 years of age or older."

RSA 458:20 (1992) (emphasis added); Laws 1987, ch. 278; see C. Douglas & C. Douglas, 3A New Hampshire Practice, Family Law § 19.13, at 74 (1992).

Under RSA 458:20, the court may order a parent to contribute toward an adult child's educational expenses if the child is in college. The plain language of this statute, together with its legislative history, demonstrates that the legislature intended to codify decisions in which this court recognized the superior court's jurisdiction under RSA 458:17 to order divorced parents, consistent with their means, to contribute toward the educational expenses of their adult children. See Hearing on HB 36 Before the Senate Judiciary Committee (April 3, 1987).

In French v. French, 117 N.H. 696, 699, 378 A.2d 1127, 1128-29 (1977), we held that RSA 458:17 provides the court with jurisdiction to order a divorced parent to pay for reasonable college expenses of their adult children.

"We note that in RSA 458:17 (Supp.1975), providing for the custody, support and education of children, the word 'minor' does not appear. Because as a matter of law jurisdiction to award custody is limited to jurisdiction over minors, there would seem to be no reason why 'minor' should be inserted in statutory language regarding such custody; but because jurisdiction to award education expenses is not limited as a matter of law to jurisdiction over minors, if the legislature had intended that there be such a limitation, it could easily have said so."

Id. Under the particular facts and circumstances of that case, we held that the superior court did not abuse its discretion in ordering the divorced father to contribute toward the current and future college expenses of his children. Id. at 701, 378 A.2d at 1130.

Following the path set by French, we consistently have granted the superior court broad discretion in its decision whether or not to order a divorced parent to contribute toward college expenses. See Gnirk v. Gnirk, 134 N.H. 199, 203-06, 589 A.2d 1008, 1011-13 (1991) (no abuse of discretion when superior court ordered divorced father to contribute toward adult child's college expenses, despite lack of educational support provision in original support order); Kayle v. Kayle, 132 N.H. 402, 404-05, 565 A.2d 1069, 1071-72 (1989) (court did not err, under circumstances of the case, in ordering divorced parent to pay reasonable college expenses of adult child); Merrifield v. Merrifield, 122 N.H. 372 374-75, 445 A.2d 1087, 1088 (1982) (no abuse of discretion when court declined to order divorced parent to contribute toward college costs of adult child); Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 151 (1978) (within court's discretion to order parties to jointly contribute toward reasonable college expenses of their children). RSA 458:17 and RSA 458:20 do not mandate that the superior court order a divorced parent to contribute toward college expenses in all cases. Rather, the trial court has the discretion to decide whether or not to order a parent to pay such expenses. See Gnirk, 134 N.H. at 201-02, 589 A.2d at 1010.

The plaintiff argues that the legislature expressed its intent to eliminate the trial court's discretion to order a divorced parent to pay reasonable college expenses by enacting RSA 458:35-c in 1990. He contends that the legislature intended to have all support orders, including educational support orders, terminate when the child reaches age eighteen or terminates high school. We disagree. RSA 458:35-c provides:

"Unless the court ... specifies differently, the amount of a child support obligation stated in the order for support shall remain as stated in the order until all dependent children for whom support is provided in the order shall terminate their high school education or reach the age of 18 years, whichever is later, or become married,...