When Permanent is Not Permanent

When Permanent is Not Permanent

When Lenore Drescher and Mark Gross were married in1987, they were both attorneys making six-figure incomes. They also had three children from that marriage, Joshua (born in 1992), Lila (born in 1994), and Noah (born in 1997). When they divorced in 2001, they executed a marital settlement agreement (MSA) that included equally paying for the future college expenses of the children.

Between 2004 and 2006, Lenore became permanently disabled and was unable to work. She supported herself and the children with her permanent disability payments and the child support provided by Mark. Her income was less than $23,000 per year. During that same period of time, Mark's income was over $420,000 per year.

In 2011, Mark went back into court and requested a change in his child support obligation, because Lila was spending more time with him. The court granted his request.

Later, now as an adult, and no longer subject to child support, Lila enrolled in the University of Missouri and began incurring significant expenses. Lenore sought a modification of the MSA, stating that she could not afford Lila's expenses. The trial court denied her request. The court concluded it lacked jurisdiction to modify that part of the judgment, because it was contractual, not legally obligated child support (which can be modified). Lenore appealed.

The Appellate Court reversed reasoning that the college expenses agreement should have been considered to be modifiable child support, and thus, subject to modification. "…We conclude the parties' stipulation to pay each minor child's college expenses resulted in a child support order when incorporated into the court's judgment. Though based on an agreement to pay adult child support, the resulting order was subject to the court's jurisdiction to modify, absent an express and specific agreement by the parties to the contrary. Because the MSA does not expressly restrict the court's authority to modify the college expense support order, the trial court erred in concluding it lacked jurisdiction."

When parties make agreements in a divorce, some of them are permanent (non-modifiable) such as, who gets what property, and some are modifiable, such as child support. There are some that are considered modifiable, unless the parties agree otherwise, such as spousal support. The Appellate Court determined that unless the parties agreed otherwise, child support for adult children is modifiable.

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