What do you call this?

[LizaLou1]

Soc,

Divorce is in AL.  Parents bought a State pre-paid tuition college plan  during the marriage.  Plan only allows one "owner" which was the mom on behalf of the son.  Fast forward 10 years or so.  Divorce takes place and parents agree to split remaining college expenses in the settlement agreement.  Initially mom gets custody of son.   About 3 years later at age 15 son wants to live with dad.  After a court battle, dad gets custody of son.  Mom disowns the son and either cashed in the college plan or transfered it to a neice (not sure yet).  Son starts college in the fall.

Contempt doesn't sound right, but isn't there something terrible wrong here?   Did she have the right to give his college away?

What type of action gets filed to recover or repair the "paid" college situation?  Is son out of luck?

Thanks a bunch!  Hope your having a get New Year's.

LizaLou

[socrateaser]

>Contempt doesn't sound right, but isn't there something
>terrible wrong here?   Did she have the right to give his
>college away?

Depends on what the settlement agreement says. If the plan was specifically mentioned as part of the orders, then the order would probably control distribution of the funds. Also, it depends on how title to the funds are held, i.e., who is the beneficiary of the funds, the child or the mother. Also, there is a potential issue of federal preemption, because this may be a plan that is actually governed by federal law, even if the plan is established by the State under some sort of sponsorship. If that's true, then it doesn't matter what state law is, if Congress has unmistakeably stated its intention to supersede state law.

What is clear is that the mom cannot violate the court order and not share the expenses of college, even if she has disposed of the money from which these funds were originally deposited. That would be contempt.

And, if the father deposited funds into the account with the intent, under the settlement agreement that they be used for the son's benefit, then mom's use of the father's funds would be civil conversion, i.e., exercise of dominion and control over the property of another such that it is fair to declare a forced sale of the property for the original owner's benefit. This theory permits imposition of punitive damages, in addition to the original money converted. Also, the mother would have to pay her own legal fees, no matter what the outcome.

If the son is actually named as beneficiary of the fund, then mother's taking the money would be a breach of fiduciary by mother as trustee, which is another theory under which you could get the money back using the court's contempt powers.

Also, if the money was actually designated for the son as part of the settlement agreement, then mother's taking the funds is probably crimnal embezzelment, i.e., conversion of property held in trust for another, without consent or privilege. If the amount in the fund is more than say $25K, I'd report it to the local prosecutor, because you just might get the State to collect the money for you.

So, this issue is not at all simple, and you probably need to take all the documents and facts to an attorney who understands contracts, trusts and tort law, because even if your ultimate remedy is to ask a family court for a contempt order under the settlement agreement, the family law attorney may not consider all the relevant issues that could be used as a rationale to recover the funds.

>What type of action gets filed to recover or repair the "paid"
>college situation?  Is son out of luck?

Let's review:

1. Possible contempt for violation of the settlement agreement, if the agreement specifically mentions that the college fund will be used for the son's college expenses, or the mother refuses to pay her fair share of college expenses.

2. Possible civil conversion, if the father deposited funds intended for the son's use with the consent of the mother, and the mother has now used those funds for some other purpose.

3. Possible criminal embezzelment, if the fund was actually and legally established expressly for the son's benefit, i.e., son is designated beneficiary in the fund documents, or in the settlement agreement, and the mother knowingly converted the money to her own use with the intent to permanently deprive.

4. Possible federal preemption, that would prevent father or son from recovering anything, if federal law declares the contents of the fund the property of the person in wholse name the account is held. This is an unlikely outcome, and federal law would not protect the mother in the case of conversion or any other intentionally deceitful action, because the court can award punitive damages to get around the fact that federal law might prevent awarded compensatory damages.

[LizaLou1]

Thanks!