In Re Goulart
The petitioner, Joseph Goulart, Jr., appeals from an order of the Franklin Family Division (Gordon, J.), entered on the recommendation of the Marital Master (Geiger, M.), to assist with his son’s college education expenses, as he agreed to do in the stipulated parenting plan. We reverse and remand.
The record supports, or the family division found, the following facts. Joseph and Marcia Goulart are the parents of one child, a son born in 1990; the couple was divorced in November 2005. The final decree of divorce from the Merrimack County Superior Court (McGuire, J.) “approved and incorporated” a permanent stipulation, a stipulated parenting plan, and a stipulated uniform support order. The stipulated parenting plan includes paragraph I (“OTHER PARENTING AGREEMENTS”), which reads in pertinent part:
1. Post Secondary Education
The parties are aware of the statutory provisions prohibiting the Court from ordering any parent to contribute to expenses for an adult child. Notwithstanding said prohibition, the parties agree that after [their son] uses his best efforts to secure scholarships and grants, but not student loans, that Joseph shall be responsible for payment of [their son’s] college educational expenses, including, but not limited to, tuition, room, board, books, fees, and reasonable spending money.
During the negotiation of the stipulated parenting plan and at the time of its approval by the court, Marcia Goulart was represented by her current counsel and Joseph Goulart was represented by prior counsel.
In July 2007, Joseph Goulart filed a motion to define his obligation regarding college expenses, and again maintained that the court could not obligate him to pay his son’s college-related expenses. After a hearing, the family division ruled:
The Court fully expects Joseph Goulart, Jr. to assist with [his son’s] educational expenses as he agreed to in the Final Parenting Plan, and he is herewith ordered to do so. His Motion to Define Obligation Regarding College Expenses is granted accordingly.
This appeal followed.
On appeal, Joseph Goulart contends that the family division has no statutory authority to enforce a college education funding obligation in a divorce that post-dates
No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.
The statute was effective October 1, 2005; its identically-worded predecessor,
“The court’s powers in custody, maintenance, and education of children in divorce and separation eases are conferred entirely by statute.”
LeClair v. LeClair,
The superior court’s (prior to the implementation of the family division in Merrimack County) approval of the parties’ stipulated parenting plan made the stipulation an order.
See In the Matter of Cole & Ford,
Having previously found the statutory language of “[n]o child support order shall require” to be ambiguous, we have reviewed the statute’s legislative history on several occasions.
See, e.g., In the Matter of Goldman & Elliott,
[I]t is clear that, at a minimum, the legislature intended to preclude the trial court from issuing new court orders requiring a parent to contribute to an adult child’s college or other educational expenses on or after February 2, 2004.
Goldman & Elliott,
In
Goldman & Elliott,
the parents of two minor children were divorced in 1991. In its order, the superior court indicated that it made no order regarding college, trusting that the parents could discuss and agree upon that issue, in spite of the court’s statutory authority at that time to order divorced parents to contribute toward their children’s college expenses. Twelve years later, in August 2003, the mother filed a motion to bring forward and modify existing child support, in which she sought contribution for college expenses for their then twenty-two-year-old son, who was enrolled as a full-time student at the University of New Hampshire. The father objected and a hearing was scheduled for March 11, 2004. On February 4, 2004, however, the statutory amendment and its prohibition became effective.
Goldman & Elliott,
Does the [statutory amendment] preclude the Court from considering contribution of college educational expenses for an adult child when the Motion for college contributions was filed prior to the enactment of the Amendment but the hearing was scheduled after the effective date of the Amendment?
Id. (brackets omitted). We responded in the affirmative. Id.
We added the following dicta:
Because the [mother’s] opportunity to have the trial court consider ordering the [father] to contribute to their adult son’s college expenses derived solely from statute and no final judgment had been rendered, the statutory amendment deprived the court of jurisdiction over the subject matter.
Id. at 775 (quotation and brackets omitted). As neither party has argued to the contrary, we follow our earlier dicta for the purposes of this appeal.
Accordingly, under the statutory amendment, the superior court and the family division are deprived of subject matter jurisdiction to either approve or enforce a provision in a stipulated parenting plan that requires parents to contribute to their adult child’s college expenses. Consequently, we agree with Joseph Goulart’s argument in his brief that the family division erred when it stated, “[Goulart] was aware of and informed as to the legislation concerning college, but that with the advice of counsel, he knowingly waived that provision.” Neither the superior court nor the family division had subject matter jurisdiction to either approve paragraph 1(1) of the Goularts’ parenting plan or issue an order requiring Joseph Goulart to pay his adult child’s college education expenses; Goulart’s “waiver” could not confer subject matter jurisdiction where it did not exist; and any such orders were void.
See, e.g., Close v. Fisette,
The superior court’s approval of the stipulated parenting plan, made erroneous due to the plan’s inclusion of the provision concerning college expenses, was apparently based upon a good-faith mutual mistake of law by all concerned. Consequently, questions may arise as to whether the parties justifiably relied upon the college expenses agreement in formulating their stipulations, and whether any such reliance affected a fair and equitable property division in this case.
See
Finally, and given the assumptions made here, we note that our decision properly defers to the statutory prohibition. We believe, however, that the legislature’s intent behind the prohibition was to cure the perceived ill of either a court unilaterally deciding who would fund, and to what extent, the adult child’s college expenses, or parties agreeing to a support provision that they otherwise would not simply because they thought a court would otherwise order it. As such, we respectfully urge the legislature to reexamine the statutory language with respect to the approval or enforcement of a stipulated parenting plan between two divorcing parties, both of whom are represented by counsel and fully informed of the statutory prohibition, where the parties have mutually agreed that one or both will voluntarily contribute to their adult child’s college expenses. We do so mindful of
Reversed and remanded.