Court yesterday for CS and college, now what?

[Darryl]

Had my trial yesterday for CS mod and college tuition for my 20 year old daughter. My jaw was on the floor. The judge pretty much had his mind made up in the pre-trial conference in chambers. I won't get the actual judgement for about a week but the judge was pretty clear how he felt. The trial followed.

DD lives in the dorm and by biomom's own admission spends only 1 weekend a month at her home and 1 month in the summer.

I will pay GUIDELINE child support of $700.00 per month AND 1/2 of college tuition, room, board, books etc at an expensive private college that I had no part in choosing. DD could have attended the STATE college free after scholarships and obtained the same degree.

OR

I will get a SLIGHT offset in my guideline support if I pay 75% of all out of pocket college expenses.

I will most likely NOT get the tax exemption that biomom has gotten for 18 years, Nor will I be able to pay my ADULT daughter the CS directly.

Yes I had a lawyer, but I wonder why I wasted my money. I don't see how it could have been any worse.

This was his opinion before the trial and I don't believe anything came out in the trial that would change his mind. No one slung any mud and biomom was 'caught' lying only once. She mostly told the truth thankfully.

I pay CS to another woman for a different daughter also so I am penniless most of the time. Now I am totally screwed. My expenses already exceeded my income. The judge did not give a hoot what my expenses were and I was very honest about them. He only looked at my income and hers and made his decision.



  1.   Since when does a father not get an offset of CS when the kid does not live with mother for most of the year and he is also ordered to pay for college?

  2. I know trial judges are given much discretion to order CS and college as they wish but can I appeal this?

The state is Missouri by the way.

[socrateaser]

>  1.   Since when does a father not get an offset of CS when
>the kid does not live with mother for most of the year and he
>is also ordered to pay for college?

First, know that I am WAY on your side -- in my opinion, forced college-age child support is what I would expect from the People's Republic of China, not the USA, and I'm sure that our Founders are rolling in their graves.

Nevertheless, the MO legislature passed the laws permitting this sort of judical discretion. MO is an extremely old fashioned jurisdiction when it comes to marriage/divorce/etc., as is the majority of its population, your judge has probably never been divorced, and he has no frame of reference, so he's very likely punishing you for your sins (he can't say that in court, but he probably is).

>  2. I know trial judges are given much discretion to order CS
>and college as they wish but can I appeal this?

Well, the only way that you could appeal is based on challenging the adult-child support statute as unconstitutional. I'm sure that your attorney told you that has already been tried and it failed (Snodgrass v. Snodgrass), but, in my humble opinion, that case challenged the constitionality of the statute based on the wrong legal theory, and the arguments proffered by the attorneys at the time were "tres mediocre."

However, before you get all excited, and before I give you the legal theory that I believe has at least a good chance of winning, you need to know:

a. Unless you raised the issue of constitutionality at the trial level, you foreclose the possibility of such an appeal. And, I doubt that you did, so you're probably SOL, UNLESS you were to submit a motion right now, before the ruling making the challenge. Ordinarily, I'd say you're even SOL for that, but as this challenge is purely based on matters of law, and not facts, there's no reason to try any of the issues, so regardless of whether you had your trial, you should still be able to raise the legal issue.

b. An appeal like this will probably cost you as much as the tuition and support, because the entire machinary of the State will be set against you. Also, I suspect your present attorney probably isn't up to the challenge, and frankly, I doubt that that many MO attorneys would be, based on what I read in the Snodgrass case.

c. The fact that your judge appears to be ready to make such a lopsided decision against you, strongly suggests that he will ignore your challenge at the trial level, and you will be forced to appeal. It would be better that you start with a winner.

Basically, what I'm saying, is, unless you want to tilt at windmills, Mr. Don Quiote, you are probably gonna have to tighten your belt and suck it up for another year.

You just picked the wrong place to unzip your fly. But, you're not alone -- it happens to the best of us.

[Darryl]

The attorney's have 1 week (nest Tuesday to submit proposed judgements, then will come the final ruling. You are correct that the constitutionality issue was not raised as I thought Snodgrass vs. Snodgrass settled that in finality.

I have zero money left for attorney's and frankly was not too impressed with my last one anyway. I probably still have time to bring the constitutionality issue before the court if I hurry but then what?

Here is case law that I believe should at least force the appellate court to reverse on not giving me an offset of guideline support:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mo&vol=/appeals/032003/&invol=10031803_2003

a parent is obligated under an agreement to pay the costs of a child's education, the trial court should consider this obligation when determining child support award in order to avoid a redundancy for the child's living expenses during her attendance at college. See Bogusky v. Bogusky , 710 S.W.2d 445, 446-47 (Mo. App. E.D. 1986) (where father was obligated under agreement to pay costs of child's education, court would need to decrease child support award when child began college in order to avoid requiring father to pay twice for child's support).

I know this caselaw is 1986 but this ruling was handed down in 2003.


1. Your thoughts on the above caselaw?

2. Missouri statutes do not 'specifically' address "college costs" just college-age support so how can the judges in Missouri order both?


Thanks again Soc.

[socrateaser]

>1. Your thoughts on the above caselaw?

The case law looks good. I see no reason that you should be ordered to pay child support twice, and I don't see how the court can lawfully order you to pay the direct costs associated with tuition, especially in view of the case law you provide. But, maybe I'm missing some other statute or case law, or maybe you agreed to pay tuition in a prior stipulated order or judgment.

>
>2. Missouri statutes do not 'specifically' address "college
>costs" just college-age support so how can the judges in
>Missouri order both?

See above.

PS. The Snodgrass ruling addressed only the 14th Amendment's equal protection and fundamental rights issues of adult-child support. It did not address the private/takings issue, which implicates the 5th Amendment, U.S. Constitution, and perhaps more importantly, Article 1, Section 28, Missouri Constitution.

The issue, in its simplest terms is: Can the State create a legal duty, the mere existence of which permits the State to take private property without just compensation?

An adult child is no longer in the custody of his/her parents. The child is a free person, entitled to the full pallete of constitutional rights of any other citizen (can't drink, but alcoholic beverage regluation is left entirely to the several states by express amendment to the U.S. Constitution).  

A governmental regulation that permits one person's property to be taken/condemned and given to another requires, at a minimum, a public purpose, under the 5th Amendment. Taking property for a private purpose is forbidden, even if just compensation is paid.

Clearly, taking your income to provide educational support to your adult child is a taking within the meaning of the 5th Amendment.  However, the U.S. Supreme Court has held that it will not invalidate a legislative determination of public purpose, if it can be justified under any reasonably conceivable set of circumstances. Undoubtedly, the MO legislature would argue that it is a legitimate public purpose that children of divorced and never married parents obtain higher education benefits at the expense of their parents, and that the State is merely mitigating a perceived evil created as the result of children being the innocent victims of non-intact families.

The initial response is, that if the state's interest is legitimate, then why isn't your income as taken being put to the benefit of ALL of the adult children of divorced and never married parents of the state -- in other words, why aren't divorced and never married parents being taxed to pay for this noble investment? Obviously, the answer would be, that if the state were to tax you, there would be a host of adult children of intact families who would suddenly appear and want the equal protection right to apply for the tax benefit!

And, there may be some general impediment to taxing one group of society based solely upon their class distinction as divorced or never married --  indeed that might convert you all into a suspect class deserving of strict scrutiny, and thereby destroy the ability of the state to tax you at all, because there is no constitutionally required compelling interest in providing state funds for adult children higher education, or if there is one, then there likely is a compelling interest for just about everything, and thus no constitutional protection for anyone on any issue, no matter how grave.

No, the truth here is simply that this is a purely private taking and without any compensation -- the only person's property who is taken by the court's order is yours, and the only person who benefits is -- now this is truely laughable -- your ex wife!! Only, she isn't going to college -- your child is! So "what in the wide wide world a' sports is a goin' on here?" -- Slim Pickens, Blazing Saddles.

Well, "what's goin' on" can be instantly understood through another much more well known and onerous quotation:

"In a higher phase of communist society...From each according to his ability, to each according to his needs!"  Karl Marx, Critique of the Gotha Programme."

The idea of forcing adult parents to pay support for adult children who are fully capable of supporting themselves, and moreover to pay it to the custodial parent of the child, rather than directly to the child, is nothing short of the redistribution of weath contemplated by Marx, Engles, Lenin, Stalin, et. al. Ironically, it is this very same principle that the conservatives of the bread basket midwestern U.S. claim to despise the most -- yet here it is, duly enacted by those very same people.

However, let's suppose that I were to concede that there was a legitimate public purpose here, and moreover, that the legislature's means of effecting it is equally legitimate. Then, where, may I ask, is your "just compensation" for the public taking?

The answer is that State has created a legal duty that you are obliged to support your adult child's higher education, thus taking your property to accomplish this duty effectively compensates you, and you are left -- with nothing.

But, wait just a dog gon minute here! The State here has created a legal duty, that requires no breach by you to arise, for the sole purpose of effecting its public taking without paying you compensation. Obviously, if there were no duty, then in order for your adult child to obtain your property, he/she would have to prove an injury in fact to the court. But, of course, no injury has occured. The fact that you don't want to pay for his/her college education is not ordinarily a claim for which relief may be granted in a court. And, without the duty, the state would be forced to compensate you for your support payments, thereby placing the burden indirectly on the taxpayers of the State of MO.

But, the State has enacted this duty of continuing support, so the court can order your property taken, and not burden the public fisc. Well, if this is a permissible legal concept, then there is no 5th Amendment protection whatsoever. If the State wants you to support your next door neighbor "according to your ability" and "according to his need," then it can just enact a duty to do so, and then it can take your property and give it to your neighbor and leave you with nothing.

"Hello Darryl, this is the County Sherrif's office. We're just calling to let you know that we took your new high definition tv today and gave it to a Mr. Samuel Johnson, so that he could watch the Rose Bowl. I'm sure you understand -- it's part of your legal duty to support people with less than you -- and he doesn't have an hdtv. Goodbye."

And that, is communism, plain and simple. Marx would be proud of this concept. Oliver Wendel Holmes, if he were still justice of the U.S. Supreme Court, however, would say, that this regulation "goes to far."

Happy Turkey Day.

[Darryl]

>>1. Your thoughts on the above caselaw?
>
>The case law looks good. I see no reason that you should be
>ordered to pay child support twice, and I don't see how the
>court can lawfully order you to pay the direct costs
>associated with tuition, especially in view of the case law
>you provide. But, maybe I'm missing some other statute or case
>law, or maybe you agreed to pay tuition in a prior stipulated
>order or judgment.


     There was no prior agreement or court order for college costs of any kind and we raised this point at trial.

      I really appreciate your in-depth comments on the constitutionality of the issue. It is a great service you provide Soc, and much appreciated by all of us disadvantaged NCP's. I have had little luck in finding competent representation although I must admit that there does not seem to be much that can be accomplished by an NCP or their legal counsel. Yes, it would take a smart, aggressive lawyer to even fight this, not to mention a lot of money. I have no clue where to find or even identify who that legal counsel might be.


  Another question if I might?

   1. What is the timeline to file my appeal?

 I plan on contacting my attorney Monday and have her at least file a motion stating our belief in the constitutionality of the issue. Doubt I can afford to pursue that angle but until I figure out my options I want all doors open. Then I will be releasing her, was not too impressed with her confidence level at the trial, seemed unsure of where she was heading most of the time.

  Have a great weekend!!!!!!

[socrateaser]

>   1. What is the timeline to file my appeal?

I don't know MO civil procedure. It could be 10 to 30 days -- no longer than that, and maybe shorter.

>
> I plan on contacting my attorney Monday and have her at least
>file a motion stating our belief in the constitutionality of
>the issue. Doubt I can afford to pursue that angle but until I
>figure out my options I want all doors open. Then I will be
>releasing her, was not too impressed with her confidence level
>at the trial, seemed unsure of where she was heading most of
>the time.

I note that the Snodgrass ruling "appears" to have entertained the constitutional issue on appeal, despite not raising it at trial -- or that's the way it reads -- I could be wrong about that, and I would certainly raise it in the trial court first, just in case.  

As for your attorney not knowing where she was headed, well, as former Chief Justice Burger once said, "70% of the attorneys in the U.S. are incompetent to practice law."

...not very good odds, especially since the judges all come from the same gene pool.