LeClair v. LeClair

624 A.2d 1350, 137 N.H. 213, 1993 N.H. LEXIS 63
CourtSupreme Court of New Hampshire
DecidedMay 14, 1993
DocketNo. 91-564
StatusPublished
Cited by42 cases

This text of 624 A.2d 1350 (LeClair v. LeClair) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LeClair v. LeClair, 624 A.2d 1350, 137 N.H. 213, 1993 N.H. LEXIS 63 (N.H. 1993).

Opinion

Brock, C.J.

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 [217]*217could 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 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 [218]*218be 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 divorced parents 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’ [219]*219does not appear.

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Cite This Page — Counsel Stack

Bluebook (online)
624 A.2d 1350, 137 N.H. 213, 1993 N.H. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leclair-v-leclair-nh-1993.