Sunday, September 18, 2005
The Mississippi courts have been working their way through the allocation of private school tuition in child support, and apparently have yet to find agreement. In 2002, the Mississippi Supreme Court held, in a 5-4 opinion, that private school tuition is, by itself, an inadequate basis for a child support award in excess of the statutory guidelines. Southerland v. Southerland, 816 So. 2d 1004, 2002 Miss. LEXIS 133 (Miss. 2002). Since then, lower courts have struggled with the scope of this holding. This past week, the courts of appeals issued two opinions on the same day that came to opposite results on whether private school tuition could be ordered separate from child support.
Striebeck V Striebeck, 2005 Miss. App. LEXIS 639 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
and Roberts V. Roberts, 2005 Miss. App. LEXIS 638 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
Neither case explains its decision very completely and it is difficult to reconcile the cases…
The difference can hardly be explained by any facts evident from the opinions, in both cases Father was the primary earner, with roughly similar but fluctuating income (Mr. Roberts was a pharmaceutical salesman while Mr. Striebeck was a trial attorney in solo practice). In both cases the parties had agreed to send the children to private school before the divorce. In Striebeck, however, the court concluded that “While it is true that our supreme court has previously stated that private school tuition should not be awarded in some factual circumstances, we cannot find that the chancellor erred in this instance.” In Roberts, the court concluded, “While a father's agreement prior to divorce to send a child to private school may be one legitimate factor to be considered, it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory guidelines."