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Reversal of Order Requiring Husband to Pay Private School Tuition

The Law Offices of Matthew S. Nugent recently obtained the reversal of a provision in a Final Judgment that stood to require a client to pay the entire cost of private school tuition for his three children.  See Gelman v. Gelman, 2010 Fla. App. Lexis 23, No. 4D08-3918 (Fla. 4th DCA, Jan. 6, 2010).

In summary, the Fourth District Court of Appeals found that the Final Judgment provision requiring Husband to pay private school tuition was reversible error because Wife failed to request the relief in her pleadings and there was no record evidence that the Husband agreed to pay the tuition.  Furthermore, the Gelman court found that trial court failed to make the requisite findings as to whether the Husband had the ability to pay the expenses, or if the private school expenses were in accordance with the family’s customary standard of living and the children’s best interests.  

For the full opinion please read below.

We affirm the final judgment, except as to the trial court’s order that Former Husband pay the children’s private school tuition.

The award of a child’s private school expenses is reviewed for abuse of discretion. See Thomas v. Thomas, 776 So. 2d 1092, 1094 (Fla. 5th DCA 2001). “[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So. 2d 505, 506 (Fla. 4th DCA 1999). A court may order a noncustodial parent to pay for private educational expenses if it finds that the “parent has the ability to pay for private school” and the “expenses are in accordance with the family’s customary standard of living and are in the child’s best interest.” Wilson v. Wilson, 559 So. 2d 698, 700 (Fla. 1st DCA 1990) (citing Luskin v. Luskin, 492 So. 2d 783, 784 (Fla. 4th DCA 1986)).

Former Husband contends that the trial court improperly ordered him to pay the children’s private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact under Wilson. Former [*3] Wife counters that the parenting plan included the financial responsibility to pay the private school tuition and that the trial court incorporated the plan into the final judgment.

Former Wife’s counterpetition did not contain a request for payment of the private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family’s customary standard of living and are in the children’s best interest. See Wilson, 559 So. 2d at 700 (citing Luskin, 492 So. 2d at 784).

Accordingly, we reverse and remand for further proceedings consistent with this opinion. See McDaniel v. McDaniel, 835 So. 2d 1265, 1268 (Fla. 1st DCA 2003); McDonald, 732 So. 2d at 506.

 HAZOURI and DAMOORGIAN, JJ., concur.

Affirmed in part, Reversed in part, and Remanded.

The Law Offices of Matthew S. Nugent exclusively handles Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida.  For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.

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