LeClair v. LeClairLeClair v. LeClair
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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
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
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).
“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 shallbe most conducive to their benefit and may order a reasonable provision for their support and education.”
“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.”
Under
In French v. French, 117 N.H. 696, 699, 378 A.2d 1127, 1128-29 (1977), we held that
“We note that inRSA 458:17 (Supp. 1975), providing for the custody, support and education of children, the word ‘minor’does not appear. Because as a matter of law jurisdiction to award custody is limited to jurisdiction over minors, there would seem to be no reason why ‘minor’ should be inserted in statutory language regarding such custody; but because jurisdiction to award education expenses is not limited as a matter of law to jurisdiction over minors, if the legislature had intended that there be such a limitation, it could easily have said so.”
Id. Under the particular facts and circumstances of that case, we held that the superior court did not abuse its discretion in ordering the divorced father to contribute toward the current and future college expenses of his children. Id. at 701, 378 A.2d at 1130.
Following the path set by French, we consistently have granted the superior court broad discretion in its decision whether or not to order a divorced parent to contribute toward college expenses. See Gnirk v. Gnirk, 134 N.H. 199, 203-06, 589 A.2d 1008, 1011-13 (1991) (no abuse of discretion when superior court ordered divorced father to contribute toward adult child’s college expenses, despite lack of educational support provision in original support order); Kayle v. Kayle, 132 N.H. 402, 404-05, 565 A.2d 1069, 1071-72 (1989) (court did not err, under circumstances of the case, in ordering divorced parent to pay reasonable college expenses of adult child); Merrifield v. Merrifield, 122 N.H. 372, 374-75, 445 A.2d 1087, 1088 (1982) (no abuse of discretion when court declined to order divorced parent to contribute toward college costs of adult child); Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 151 (1978) (within court’s discretion to order parties to jointly contribute toward reasonable college expenses of their children).
The plaintiff argues that the legislature expressed its intent to eliminate the trial court’s discretion to order a divorced parent to pay reasonable college expenses by enacting
“Unless the court. . . specifies differently, the amount of a child support obligation stated in the order for support shallremain as stated in the order until all dependent children for whom support is provided in the order shall terminate their high school education or reach the age of 18 years, whichever is later, or become married, or become a member of the armed services, at which time the child support obligation terminates without further legal action.”
First,
Viewing the plain language and legislative history of
The master stated that the plaintiff’s realization from the sale of his business and real estate would enable him to pay the amount ordered for his son’s educational expenses. Because the plaintiff did not submit a copy of the purchase and sales agreement for this court to review and there is no transcript in this case, we must defer to the master’s findings and recommendations on this issue. See Sup. Ct. R. 13(3); Cook v. Wilson Trucking Co., 135 N.H. at 157, 600 A.2d at 922. A review of the limited record before us reveals no abuse of discretion.
The plaintiff next argues that to require a divorced parent to pay private college expenses for an adult child, when the court does not have the power to issue a similar order to a married parent, is a violation of equal protection under the State and Federal Constitutions. N.H. Const, pt. I, art. 2;
The defendant argues that the equal protection issue was not properly preserved for appeal. Despite appellate counsel’s assurances during oral argument that the issue was raised in the plaintiff’s motion for reconsideration, see State v. Tselios, 134 N.H. 405, 407, 593 A.2d 243, 245 (1991) (issue raised in motion for reconsideration preserved for appellate review), the only reference to equal protection in the record below is a handwritten addendum to the plaintiff’s objection to the defendant’s motion to post security. It is questionable whether this fleeting reference provided the trial court with a full opportunity to address this issue, see id., and thus, the issue arguably is not preserved for appellate review. Nonetheless, we find some utility in addressing this equal protection issue “because similar claims may be raised in the future,” Appeal of Bosselait, 130 N.H. 604, 608, 547 A.2d 682, 686 (1988), cert. denied, 488 U.S. 1011 (1989).
Because the Federal Constitution offers no greater protection than our State Constitution under its equal protection provi
“The first question in an equal protection analysis is whether the State action in question treats similarly situated persons differently.” Appeal of Marmac, 130 N.H. 53, 58, 534 A.2d 710, 713 (1987). “If the persons are not similarly situated, ... no equal protection problem is involved.” Locke v. Ladd, 119 N.H. 136, 138, 399 A.2d 962, 963 (1979). For purposes of this case, we will assume, as did the parties, that, by virtue of their status as parents, married and divorced parents are similarly situated under the law for purposes of the issue before us. We, therefore, conduct an equal protection analysis to determine if the classification between married and divorced parents created by
In considering an equal protection challenge under our State Constitution, “we must first determine the appropriate standard of review: strict scrutiny; fair and substantial relationship; or rational basis.” Boehner v. State, 122 N.H. 79, 83, 441 A.2d 1146, 1148 (1982). Equal protection under the law does not forbid classifications, see 2 B. Schwartz, Rights of the Person § 471, at 496-97 (1968), but requires us to examine the individual rights affected and the purpose and scope of the State-created classifications. See Allgeyer v. Lincoln, 125 N.H. 503, 508-09, 484 A.2d 1079, 1082-83 (1984).
We apply the strict scrutiny test, in which the government must show a compelling State interest in order for its actions to be valid, when the classification involves a suspect class based on “race, creed, color, gender, national origin, or legitimacy,” State v. LaPorte, 134 N.H. 73, 76, 587 A.2d 1237, 1239 (1991) (quotation omitted), or affects a fundamental right, see Merrill v. City of Manchester, 124 N.H. 8, 14-15, 466 A.2d 923, 927 (1983) (private real property ownership rights recognized as fundamental); Provencal v. Provencal, 122 N.H. 793, 797, 451 A.2d 374, 377 (1982) (decisions regarding custody and rearing of minor children involve fundamental rights).
We apply the fair and substantial relation test to classifications involving “important substantive rights,” including the right to tort recovery, see Brannigan v. Usitalo, 134 N.H. 50, 55, 587 A.2d 1232, 1236 (1991); City of Dover v. Imperial Cas. & Indemn. Co., 133
Finally, we apply the rational basis test to claims in which the classification does not involve a suspect class, a fundamental right, or an important substantive right under our State Constitution. Under the rational basis test, “‘legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.”’ LaPorte, 134 N.H. at 76, 587 A.2d at 1239 (quoting Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). Absent a showing that a suspect class, fundamental right, or substantive right is involved, “economic classifications are typically subject to the rational basis test.” Petition of State Employees’ Assoc. & Goulette, 129 N.H. 536, 540, 529 A.2d 968, 971 (1987) (unequal pay scale of State employees reviewed under rational basis test); Couture v. Couture, 124 N.H. 500, 502, 471 A.2d 1191, 1192 (1984) (classification between divorced parents with minor children and divorced adults without minor children in alimony scheme under
Couture is analogous to the case at bar. In Couture, the plaintiff father, who had custody of the couple’s minor child, argued that
Here, the plaintiff raises primarily an economic issue. The classification between divorced and nondivorced parents, created in
The plaintiff has aptly stated that “[t]he objective of the court in extending its protection to children of divorced parents is to ensure that they are not unjustly deprived of opportunities they would otherwise have had, had their parents not divorced.”
The legislature’s rationale for conferring upon the superior court the authority to order a divorced parent to contribute toward an adult child’s college costs is not specified in the legislative history, see Laws 1987, ch. 278; N.H.S. JOUR. 963 (1987) (statement of Sen. Podles); however, its intent to codify our decisions that recognize the court’s jurisdiction under such circumstances is apparent. See Hearing on HB 36 Before the Senate Judiciary Committee (April 3, 1987); N.H.S. JOUR. 963 (1987) (statement of Sen. Podles). We can assume, therefore, that the legislature recognized the increasing importance of post-secondary education for the citizens of this State. See French, 117 N.H. at 699, 378 A.2d 1128-29.
Despite our limited insight into the legislature’s intent, we observe that heightened judicial involvement over the financial and personal lives of divorced families with children may be warranted, although similar involvement may not be necessary with intact families. The
In summary, we find that the State has the dual legitimate interests of promoting higher education for its citizens, and of extending protections to children of divorce to ensure that they are not deprived of opportunities they otherwise would have received had their parents not divorced.
The plaintiff further argues that the court erred by ordering him to pay for private college costs when public education was requested, available, and reasonable under the circumstances of the case. He urges us to create a presumption in favor of public higher education institutions. This, we will not do.
We also note that the plaintiff contends that he was not included in the decision-making process as to his son’s choice of college. The record indicates, however, that the defendant attempted to contact the plaintiff regarding these issues, and that the plaintiff did not reply. The plaintiff cannot now complain about a situation for which he was responsible.
Affirmed.
All concurred.