Facts: When Husband and Wife divorced in 2009, the court entered their agreed parenting plan which provided that Husband agreed to pay the children’s private school expenses through 12th grade.
In 2015, Husband petitioned to modify the parenting plan because, he argued, there had been a material change in circumstances regarding his obligation to pay private school tuition. Specifically, Husband alleged that his daughter had recently been expelled from her private school. He sought to modify his obligation to pay private school tuition by equitably apportioning the responsibility between the parents or, alternatively, for a downward deviation to his child support obligation to reflect his financial burden of paying private school tuition.
The trial court denied Husband’s petition, holding that his tuition obligation was voluntarily assumed, was contractual, and because “it is not the role of the courts to rewrite contracts for dissatisfied parties.”
On Appeal: The Court of Appeals reversed the trial court.
Husband argued the trial court erred in holding that it lacked authority to modify his obligation to pay private school tuition because this obligation was voluntarily assumed and was contractual in nature.
In Tennessee, a trial court lacks the authority to order a parent to pay for the college education of a child who has reached the age of majority. A parent may voluntarily assume such a duty by agreement, and an agreement to support a child beyond the age of majority will be enforced. However, because such agreements are beyond the legal duty of child support, they retain their contractual nature when incorporated into a court order. Therefore, such agreements are not subject to modification by the court.
On the other hand, private elementary and secondary education tuition is an educational expense that may fall within the parents duty to support his or her child in certain cases. When parents contract with respect to the legal duty of child support and the court approves that contract, the agreement becomes merged into the court order and loses its contractual nature. Therefore, unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education that has been incorporated into a court order is subject to subsequent modification by the trial court.
In light of this distinction between the modifiability of a voluntary agreement to pay private elementary or secondary school tuition as compared to college expenses, the Court reversed the trial court:
Although a parent’s agreement to pay for post-secondary education expenses is contractual in nature and not subject to modification by the trial court, this case involves Husband’s agreement to pay for private elementary and secondary education. [For this reason,] the trial court possessed of the authority to order this type of support even without an agreement of the parents. Further, upon adoption of the parties’ parenting plan into the trial court’s final order of divorce, this support obligation merged into the divorce decree and lost its contractual nature. Accordingly, the trial court erred in holding that it was without power to modify Husband’s private school tuition obligation.
Thus, the trial court’s judgment was reversed and the issue remanded for a determination of whether modification of Husband’s private school tuition obligation is warranted and, if so, to what extent.
K.O.’s Comment: Tennessee lawyers should be mindful of the difference between voluntary agreements to provide pre-emancipation “child” support, which agreements can be modified, and voluntary agreements to provide post-emancipation “adult” support, which agreements cannot be modified.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.