Webb v. Sowell

• Decision Date: 19 April 2010
• Docket Number: No. 26807.,26807.
• Citation: 692 S.E.2d 543,387 S.C. 328
• Parties: Timothy L. WEBB, Appellant,v.Janice Rush SOWELL, f/k/a Janice Rush Webb, Defendant and Timothy Loren Webb, Jr., Third Party Defendant,of whom Janice Rush Sowell and Timothy Loren Webb, Jr. are Respondents.
• Court: South Carolina Supreme Court

387 S.C. 328

692 S.E.2d 543

Timothy L. WEBB, Appellant,v. Janice Rush SOWELL, f/k/a Janice Rush Webb, Defendant and Timothy Loren Webb, Jr., Third Party Defendant,of whom Janice Rush Sowell and Timothy Loren Webb, Jr. are Respondents.

No. 26807.

Supreme Court of South Carolina.

Heard Jan. 7, 2009.

Decided April 19, 2010.

Joe Wayne Underwood, of Moses, Koon & Brackett, and Regina Hollins Lewis, of Gaffney Lewis & Edwards, both of Columbia, for Appellant.

Stephen R. Smoak, of Savage, Royall & Sheheen, of Camden, for Respondents.

Justice PLEICONES.

This is a direct appeal from the family court's order requiring appellant, Timothy L. Webb (Father), to contribute to college expenses for his son, respondent Timothy Loren Webb, Jr. (Son). Because we find that Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) was wrongly decided and that S.C.Code Ann. § 63-3-530(A)(17) ¹, as interpreted, is unconstitutional, we reverse.

FACTS

Father and respondent Janice Rush Sowell (Mother) divorced in 1994. Father and Mother had two children born of the marriage; Son is the older of the two children. Son turned 18 on April 13, 2005, and started college in the fall of that same year. In April 2006, Father brought an action to reduce child support based on Son's emancipation. Mother counterclaimed for college expenses for Son who eventually joined the legal action as a third party defendant. Mother and Father agreed to reduce Father's child support obligation to reflect only support for their daughter, but the case proceeded to trial on Mother's counterclaim regarding Son's college expenses.

Mother's counterclaim was heard in January 2007, during Son's fourth semester. At the outset of the hearing, Father moved to dismiss Mother's counterclaim based on the Equal Protection clause of the federal and state constitutions. In an order denying Father'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.

The family court required Son to apply for “all grants, scholarships and loans” as well as “earn as much money as he can during the summer months and holidays to defray his expenses.” Further, the family court specifically found that Son “has the obligation to carry as much of the burden as he can.” The family court found that thereafter, Mother and Father would equally divide all reasonable college expenses, to include tuition, books, room, board, spending money, meals, supplies, fees, health insurance, transportation, and any other incidental expenses. This appeal followed.

ISSUE

Does the family court's order obligating Father to contribute to Son's college expenses violate the Equal Protection Clause?

DISCUSSION

Father argues that this Court's interpretation in Risinger of the statute now found at S.C.Code Ann. § 63-3-530(A)(17) violates equal protection. We agree, and find no rational basis for a rule that permits a family court to order a parent subject to a child support order to contribute to an emancipated child's post-secondary education.

S.C.Code Ann. § 63-3-530 provides, in relevant part:

(A) The family court has exclusive jurisdiction:

...

(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.

S.C.Code Ann. § 63-3-530 (2007).

The statute provides that child support orders terminate when the child reaches age 18, marries, or becomes self-supporting.² However, a court may order the continuation of support beyond age 18 for certain “exceptional circumstances.” In Risinger, this Court held that a desire to attend college may constitute such “exceptional circumstances.” The Court explained as follows:

The need for education is the most likely additional “exceptional circumstance” which might justify continued financial support. Children over 18 with a physical or mental disability, and children over 18 in need of further education, have much in common. In each case, the child's ability to earn is either diminished or entirely lacking. In each case, most parents feel an obligation to help, and do help the child.

Risinger, 273 S.C. at 38, 253 S.E.2d at 653.

As the above passage makes clear, the Risinger Court focused on the interests of the child. The instant case, however, requires us to examine the rights of the parents. Because the statute only allows for the continuation of support beyond the age of 18, the effect of the Risinger 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, ³ nor is there any common law duty on parents to pay for an adult child's post-secondary education.⁴

The Equal Protection clauses of both the federal and state constitutions provide that no person shall be denied the equal protection of the laws. U.S. Const. amend. XIV, § 1; S.C. Const. art. I, § 3. To satisfy the Equal Protection Clause, a legislative classification must bear a reasonable relation to the legislative purpose sought to be achieved, the members of the class must be treated alike under similar circumstances, and the classification must rest on some rational basis. See German Evangelical Lutheran Church of Charleston v. City of Charleston, 352 S.C. 600, 608, 576 S.E.2d 150, 154 (2003).

We view the appropriate class as those parents subject to a child support order at the time of the child's emancipation and can discern no rational basis for the varied treatment of the class as compared to those parents who are not subject to such an order.⁵ 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. ⁶

CONCLUSION

We find that S.C.Code Ann. § 63-3-530(A)(17), as interpreted in Risinger, violates the Equal Protection Clause. We therefore reverse the trial court's denial of Father's motion to dismiss.

REVERSED.

WALLER and BEATTY, JJ., concur.

TOAL, C.J., dissenting in a separate opinion.

KITTREDGE, J., dissenting in a separate opinion.

Chief Justice TOAL, dissenting.

I respectfully dissent. Appellant argues that S.C.Code Ann. § 63-3-530(A)(17), as interpreted by Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979), violates the equal protection clauses of the United States and South Carolina constitutions. I disagree.

“In reviewing a statute challenged on equal protection grounds, great deference is given to the classification created, and it will be sustained if supported by any reasonable hypothesis and not plainly arbitrary.” Mitchell v. Owens, 304 S.C. 23, 24-25, 402 S.E.2d 888, 889 (1991) citing Samson v. Greenville Hosp. Sys., 295 S.C. 359, 368 S.E.2d 665 (1988). Furthermore, a statute enacted pursuant to legislative power is presumptively constitutional. Nichols v. S.C. Research Auth., 290 S.C. 415, 351 S.E.2d 155 (1986). Finally, this Court has consistently held it will not construe a statute to do that which is unconstitutional. See Ward v. State, 343 S.C. 14, 19, 538 S.E.2d 245, 247 (2000) citing Mitchell v. Owens, 304 S.C. 23, 402 S.E.2d 888 (1991) (holding that statutes are presumed to be constitutional and will be construed so as to render them valid).

As a threshold matter, I must address the classification relied upon by the majority because it is not one before the Court. The majority holds that S.C.Code Ann. § 63-3-530(A)(17), as interpreted by Risinger, violates the equal protection clauses of the United States and South Carolina constitutions, finding that there is no rational basis for what it perceives to be the government's disparate treatment of parents subject to support orders prior to a child's emancipation and parents not subject to support orders prior to a child's emancipation. Appellant did not raise this argument,⁷ but rather asserted that section 63-3-530(A)(17) violates equal protection because it treats divorced and non-divorced parents differently. Thus, in my view, the majority erroneously relies upon an argument not before the Court.

Nonetheless, assuming Appellant raised the classification relied upon by the majority, section 63-3-530(A)(17) does not treat such classes disparately. Section 63-3-530(A)(17) grants the family court jurisdiction to order continuation of a support order entered prior to a child's emancipation, but the jurisdiction granted to the family court is not confined to such situations. Section 63-3-530(A)(17) also grants jurisdiction to award support for post-secondary education “in the discretion of the court.” That is, the court may order a parent to provide support to cover the expenses of exceptional circumstances...