A parent’s obligation to pay child support in Michigan “may include expenses of medical, dental, and other health care, child care, and education, necessary medical expenses incurred in connection with the mother’s pregnancy or the birth of the child, and the expense of genetic testing.” MCL 552.452(1). Education expenses include books, supplies or even private tuition payments for elementary, middle or high school. Does education expenses also include college?
Most likely not. Generally, child support terminates at age 18 or until further order of the court. Id. “The court may order child support for the time a child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age.” MCL 552.605b. Even if child support is extended, it is specifically for the duration that the child is in high school. College expenses are explicitly excluded, and a judge cannot order a parent to pay for the same at the end of a child support, child custody or divorce trial.
However, agreements between the parties to pay for education beyond high school in a divorce agreement or custody agreement are enforceable. In Ovaitt v Ovaitt, 43 Mich App 628; 204 NW2d 753 (1972), a judgment of divorce was entered in 1965 incorporating verbatim the terms of a written stipulation and property agreement submitted by the parties. The judgment of divorce provided the following post-majority support for their children, referred by their initials W.J.O. and M.M.O. as follows:
“It is further ordered and adjudged that when the cross-defendant’s obligation to support W.J.O. and M.M.O. terminates as described in subparagraph A hereof, the [husband] shall pay to the [wife], through the office of the Friend of the Court for Genesee County, Michigan, for the support and maintenance of W.J.O. and M.M.O. while attending college as follows: the sum of one hundred ($100.00) dollars for each child, on the first day of each term or semester of college, and in addition thereto, the sum of one hundred ($100.00) dollars for each child, on the first day of each month that said child is in attendance at an accredited college or university; provided, however, that this provision shall limit the [husband]’s obligation for support to a total of three (3) terms per year, if said college is on a term basis, or two (2) semesters per year, if said college is on a semester basis. Said support payments as heretofore described shall continue so as to provide four (4) years of college for each child. Thereafter, the [husband] shall be relieved of all obligations to support said children. Said support payments shall include the defrayment of ordinary health expenses incurred in behalf of W.J.O. and M.M.O.”
The parties agreed that at the time the stipulation was entered, the husband knew that the children would be more than 21 years of age by the time they completed four academic years of college. The husband later refused to pay these college expenses as agreed or order and the wife moved to have the trial court hold him in contempt. The husband, on appeal, challenged the authority of the court to hold him in contempt for post-majority support that is not authorized by statute. The Michigan Court of Appeals disagreed and found that this provision of the judgment was enforceable:
“As we read MCLA 552.17a; MSA 25.97(1), we believe that the court has jurisdiction to make an order or judgment for support and college expenses for the children of the parties who are minors at the time of entry of such order or judgment. We find no statutory prohibition against continuing such order or judgment provisions for support and other benefits beyond minority. Further, we believe in the present technological age in which we live that it is not unreasonable to extend support to include provisions for a college education for the minor children of the parties even though such requirement would extend beyond the children’s minority. Having reached that conclusion, we believe that the provisions of the judgment of divorce as originally entered by the court providing for support and college expenses to a completion of the college education, even though it would extend beyond the children’s minority, was a valid exercise of the court’s discretion and within its power under the statutory authority allowing such provision for minor children.”
“Under the facts of this case, where the parties entered into an agreement that was incorporated by the court in its judgment, and the parties concede they knew at the time that the terms were not subject to performance fully within the minority of the children, it would be an invitation to chaos to hold that such provision was not enforceable. It would permit parties to divorce actions to play fast and loose with the court and with the other parties to the action by entering into agreements which they had no intention of performing.”
“Plaintiff’s conduct indicates a deliberate and willful misrepresentation to the court and opposing party at time of agreement and entry of judgment with respect to post-minority expenses of the children. As a matter of public policy, this should not be permitted and the parties should be required to live up to the terms of their voluntary agreement. The judgment entered here pursuant to the agreement of the parties did not violate the statute in that, at the time of its entry, the children were minors.” 43 Mich App at 638-639.
In Gibson v Gibson, 110 Mich App 666; 313 NW2d 179 (1981), the plaintiff-wife and defendant-husband executed a consent judgment of divorce approved by the judge that provided the trial court reserved the right to determine the amount the defendant-husband would pay for the education of his child beyond high school. The husband passed away and plaintiff-wife filed an action asking the court to determine the amount of money to be paid by the defendant’s estate towards the child’s college education. The trial court refused to enforce this provision, in part, because it believed that students should be responsible for their own college education. The Michigan Court of Appeals disagreed, finding that, “[w]hen agreed to by the parties, the provision for a determination by the court of an amount to be paid for educational expenses, even though this would extend support beyond the child’s minority, is a valid exercise of the court’s discretion and within its power under the statutory authority allowing such provision for minor children.” 110 Mich at 670-671.
In Aussie v Aussie, 182 Mich App 454; 452 NW2d 859 (1990), the wife appealed the circuit court’s decision not to enforce a stipulation in writing entered into and placed in the court file in which the husband agreed to pay $6,000.00 a year toward Andrew’s college expenses. This agreement to pay college expenses was entered into between the parties as part of a separate agreement for the wife to not pursue an increase in support at the time. The Michigan Court of Appeals found the circuit erred in not enforcing the agreement:
“We recognize a problem in this case in that the stipulation attempts to provide its own remedy in case of violation of the contract, namely that if defendant fails to meet the obligation which he undertook plaintiff has the right to apply for court intervention in the form of increased support. While the option of increasing child support for Andrew is no longer valid, defendant did agree to pay the college expenses in consideration of plaintiff’s agreement not to seek additional support at the time. Plaintiff kept her part of the bargain. As the Ovaitt panel concluded, failure to enforce such contracts would be “an invitation to chaos [because it] would permit parties to divorce actions to play fast and loose with the court and with the other parties . . . by entering into agreements which they had no intention of performing.” Oviatt, supra at 638. We therefore remand to the trial court for a hearing. The court shall consider the entry of judgment for plaintiff for that portion of the contract to pay $6,000 a year toward Andrew’s college expenses which defendant refused to perform.” 182 Mich App at 464-465.
The clear message from Michigan appellate courts is that agreements made to pay for college expenses in the judgment of divorce will be enforced. This means that parents going through divorce or custody proceedings should not make empty promises about post-majority support for their children on the assumption that it would be unenforceable by the judge. The court will not hesitate to hold you to your end of the bargain. Before you agree to any such provision to pay for college expenses in a divorce judgment, you should seek the advice of a skilled family law lawyer first.
If you or a loved one have any further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
