Can an order to pay Private School tuition be modified?

Parents can agree, or be ordered, to pay private school tuition as part of a custody or divorce case. Let’s say that you and your spouse agree that you will pay for your child’s private school tuition, you put that in the decree, then the bill comes, or you lose your job and can’t pay. What now?

This was the subject of a recent family law case in the Dallas Court of Appeals- IN THE INTEREST OF H.L.B. AND B.L.B., CHILDREN

In that case Mother and Father had two children. In 2015, as part of an agreed divorce decree Father agreed and was ordered to pay all private school tuition. In 2018 Father filed a petition to modify and asked that either Mother pay all the private school tuition, or the children start attending public school.

Can you modify an order to pay tuition? 

Mother argued that no, an order to pay tuition is like a contract, and it can’t be changed later by the court. The Dallas Court of Appeals disagreed, and said that tuition is like child support, and can be changed or modified. It might be different for tuition for a child who is over 18, that is, for college tuition etc.

From the opinion-

When the trial court rendered its final divorce decree, it acquired continuing, exclusive jurisdiction over issues concerning the parents’ rights and duties pertaining to their children’s care, support, and education. See TEX. FAM. CODE §§ 155.001(a); 151.001(a)(3) (“A parent of a child has . . . the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education.”); 153.133(a)(2)

“A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child.” Id. § 156.001.

Tuition is a form of child support, and can always be modified

Parties in a divorce or custody case can never agree that child support is off-limits for a future modification. That is, you and your spouse could enter an order that said “the parties agree child support will never be changed” and even if some judge signed that order, a future court could still modify it because such an agreement would be unenforceable.

Here’s the longer legal explanation-

First, whatever label the parties place upon it, an obligation to pay a minor child’s school tuition is necessarily an obligation to provide child support. See In re Grossnickle, 115 S.W.3d 238, 247 (Tex. App.—Texarkana 2003, no pet.) (“[T]he required payment by Richard of half the costs for the child to attend Hockaday, though categorized separately, is necessarily a form of child support.”); see also Huffines v. McMahill, No. 07-10-00029-CV, 2010 WL 2836980, at *2 (Tex. App.—Amarillo July 20, 2010, no pet.)

Further, had the parties intended to place the educational issues beyond the trial court’s reach by structuring the agreement to avoid classifying the tuition obligation as child support, the agreement would be unenforceable. In re Lee, No. 14-11-00714-CV, 2011 WL 4036610, at *1 (Tex. App.—Houston [14th Dist.] Sept. 13, 2011, orig. proceeding) (mem. op.) (“Parties cannot by contract deprive the court of its power to guard the best interest of the child.” (quoting Leonard v. Lane, 821 S.W.2d 275, 278 (Tex. App.—Houston [1st Dist.] 1991, writ denied)); In re T.K.W., No. 04-09-00048-CV, 2010 WL 546584, at *2 (Tex. App.—San Antonio Feb. 17, 2010, no pet.) (mem. op.) (“[W]hen parties draft child support agreements, they cannot agree to prohibit the intervention of the courts where such intervention is authorized by the Family Code.”). We have said that “[a]n agreement on conservatorship issues that is not in the child’s best interest violates public policy and is unenforceable.” Garcia-Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.— Dallas 2004, no pet.). And Mother incorrectly

If you are getting divorced and need help on an issue like private school tuition, or if you want to modify your divorce decree or child custody order call Guest and Gray today. We have a team of family attorneys ready to help you, and we offer free consultations.