Private School Tuition Not a “Proven Need” Justifying Child Support Increase; Wife Failed to Refinance House So It Must be Sold

Private School Tuition Not a “Proven Need” Justifying Child Support Increase; Wife Failed to Refinance House So It Must be Sold


The Parents’ divorce Decree required Father to pay maximum guideline child support based on his net resources of at least $7,500. Their Decree also ordered Mother to refinance her residence by a certain date and if she did not, it ordered the property to be sold with the proceeds to be paid to her.  


Father filed a motion to enforce his possession of their son and a motion to enforce the terms regarding Mother’s refinance of her residence. After a trial, the judge ordered Mother to pay rent to Father for the residence, to relinquish possession of the residence to Father within 60 days and required Father to pay the mortgage payments. The order made no mention of the house sales proceeds. 


The next year, Mother filed a motion to modify the order, asking to increase child support by ordering Father to pay private school tuition and costs for their child. She also asked that Father be ordered to pay her the sale proceeds from the residence. At trial, evidence showed that Father’s income had increased and that he had voluntarily paid $900 per month for the child’s private school tuition over the preceding year.  The judge increased Father’s child support by obligating him to pay the child’s tuition.  The judge also ordered Father to pay the residence sales proceeds to Mother. Father appealed. 


The appellate court reversed the order increasing child support. When a parent’s net resources exceed the guideline cap, child support above guidelines must be based on the proven needs of the child.  In order to establish that private school tuition is a “proven need,” evidence must show “something special that makes the particular child need or especially benefit from some aspect of non-public schooling.” There was no such evidence in this case, so Mother did not meet her burden to prove their child’s needs that justified payment of support above the guideline amount. 


The appellate court affirmed the order to pay Mother the proceeds from the residence sale.  A trial judge cannot modify the property division. The Decree obligated Mother to refinance by a date certain or sell the property and receive the proceeds.  She did not refinance it, so the property must be sold. The trial judge’s orders did not modify the property division in any manner, even though the judge shifted the burden of the mortgage debt obligation to Father. The trial judge ordered the sales proceeds to be paid to Mother, which did not modify the terms of the Decree. 


Case reference:

Troiani v. Troiani, 2016 Tex. App. LEXIS 9962 (Tex.App. – Corpus Christi September 8, 2016) (mem. opinion) (Cause No. 13-14-00630-CV)

*Any article or blog post is for educational and informational purposes only and is not a substitute for the advice of a licensed Rivers McNamara attorney.

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