Hello and thank you for your question.
The applicable statute is RCW Section 26.19.090 which you can read in full
at
http://www.leg.wa.gov/RCW/index.cfm?section=26.19.090&fuseaction=section
Paragraph (2) of Section 26.19.090 states:
"(2) When considering whether to order support for postsecondary
educational expenses, the court shall determine whether the child is
in fact dependent and is relying upon the parents for the reasonable
necessities of life. The court shall exercise its discretion when
determining whether and for how long to award postsecondary
educational support based upon consideration of factors that include
but are not limited to the following: Age of the child; the child's
needs; the expectations of the parties for their children when the
parents were together; the child's prospects, desires, aptitudes,
abilities or disabilities; the nature of the postsecondary education
sought; and the parents' level of education, standard of living, and
current and future resources. Also to be considered are the amount and
type of support that the child would have been afforded if the parents
had stayed together."
The case closest to (but hopefully distinguishable from) the situation
that you describe is Huff v. Huff, and it is sure to be cited against
you by your spouse.
Huff v. Huff, No. 37987, SUPREME COURT OF WASHINGTON, Department One,
68 Wn.2d 501; 413 P.2d 818; 1966 Wash. LEXIS 763, April 28, 1966
"Amount of child support that trial court awarded to mother was
unreasonable where trial court took into consideration trust funds
that had been established for children's future education. Those trust
funds were not to be used for children's support."
You will want to distinguish Huff on the basis that (i) unlike the
custodial funds in your case, this was a trust that was <not> intended
for any kind of support, and (ii) it is a case decided before the
statutory requirement was enacted (in fact it is the Huff case that
gave the legislature the inspiration to enact the post-secondary
support statute).
In order the review all the cases that might apply under the
post-secondary support statute, I registered my credit card with
http://web.lexis.com/xchange/ccsubs/cc_prods.asp
and reviewed the summaries of the 33 Washington cases that cite 26.19.090
Of these 33, only the following are at all relevant:
Two cases make clear that the principal focus under the statute is the
income of the parents:
Newell v. Newell, No. 49799-5-I , COURT OF APPEALS OF WASHINGTON,
DIVISION ONE , 117 Wn. App. 711; 72 P.3d 1130; 2003 Wash. App. LEXIS
1555, July 21, 2003, Filed
"Trial court erred in not accurately determining each parents' income
and proportional share under the child support schedule before making
its decision about amount each parent should be required to pay for
daughter's postsecondary education support."
In re Marriage of Winder, No. 46212-1-I, COURT OF APPEALS OF
WASHINGTON, DIVISION ONE, 2001 Wash. App. LEXIS 1618, July 23, 2001,
Filed,
"The trial court did not abuse its discretion in including private
school and post-secondary school expenses in the child support order.
Disparity in income and distribution of property justified the
maintenance award."
Three other cases make clear that although the court has discretion
under the statute, it must consider the statutory factors:
In re Marriage of Schlindwein, No. 47386-7-I, COURT OF APPEALS OF
WASHINGTON, DIVISION ONE, 2002 Wash. App. LEXIS 492, March 25, 2002,
Filed,
"Trial court could modify divorce decree to order postmajority
educational support in compelling circumstances but abused its
discretion by perfunctorily ordering such support without considering
applicable statutory factors on child's actual needs."
In re Marriage of Staples, No. 17869-2-III, COURT OF APPEALS OF
WASHINGTON, DIVISION THREE, PANEL THREE, 2000 Wash. App. LEXIS 459,
March 23, 2000, Filed,Reported in Tablecase Format at: 2000 Wash. App.
LEXIS 1003.
"Because the superior court failed to make the statutorily required
finding that child was dependent on his parents for the necessities of
life, it lacked the power to order the parents to pay for his
postsecondary education."
In re Marriage of Grigsby, No. 16177-3-III, COURT OF APPEALS OF
WASHINGTON, DIVISION THREE, PANEL ONE, 1998 Wash. App. LEXIS 340,
March 5, 1998, Filed,
"An award of postsecondary and extraordinary child support to a wife
was improper. The trial court failed to file the required child
support worksheet and did not articulate in its findings how it had
calculated the support amount."
Having read the statute and reviewed the cases, what can we say? My
conclusion is that you may face an uphill battle in asking the court
to put the child's custodial funds ahead of your (and your spouse's,
if applicable) obligation to pay. The court will be influenced by the
last sentence of paragraph (2) of the statute:
"[To be considered are the amount and type of support that the child
would have been afforded if the parents had stayed together."
If the court concludes that in that case the two of you would have
paid the tuition, etc. out-of-pocket (preserving the child's custodial
funds for other expenses as your spouse now argues) then you will be
ordered to pay.
It's unlikely, whichever way the court rules on this question, that
the court decision can be reversed on appeal (since the court will
have applied the statutory factors in reaching its conclusion).
So I suggest that you and your attorney focus your preparation on
doing what you can to demonstrate that had there been no divorce or
separation, the two of you would in fact have applied the child's
custodial funds to the costs of college. Apart from your testifying
to that effect, perhaps you can obtain affidavits from the people who
contributed the funds (was that you? your parents? other relatives?)
stating what their intention and understanding was when they made the
gifts. Maybe you and your wife informally called this money the
"college fund?" If so that might make all the difference.
Search terms used:
washington divorce support
washington lexis
26.19.090
Thank you again for bringing us your question. Of course, as the
disclaimer below states, this answer is no substitute for professional
legal advice. I would be interested to learn what your attorney
thinks of this answer.
Sincerely,
Google Answers Researcher
Richard-ga |
