McLeod v. Starnes

*663Justice BEATTY.

I respectfully dissent in part. Unlike the majority, I do not believe a family court has jurisdiction to order a parent to pay college tuition as an incident of child support. Accordingly, I would hold that a parent has no legal obligation to pay college expenses for a child who has reached the age of majority.

In my view, our decision in this case should not be based on an assessment of the equal protection challenge. Instead, I believe we must sua sponte address the more fundamental issue of whether the family court has jurisdiction to order a parent to pay college tuition as an incident of continuing child support. See Travelscape, L.L.C. v. S.C. Dep’t of Revenue, 391 S.C. 89, 109 n. 10, 705 S.E.2d 28, 38 n. 10 (2011) (recognizing that this Court may sua sponte address an issue involving subject matter jurisdiction); Amisub of S.C., Inc. v. Passmore, 316 S.C. 112, 114, 447 S.E.2d 207, 208 (1994) (stating that the appellate court must always take notice of the lack of subject matter jurisdiction).

In my opinion, a review of the decision in Risinger reveals that it effectively expands the jurisdiction of the family court beyond what the Legislature has authorized. Furthermore, I believe the holding in Risinger violates the well-established tenets of our rules of statutory construction.

Central to my analysis of this case is a detailed review of section 63-3-530 of the South Carolina Code, which identifies forty-six areas over which the family court has exclusive jurisdiction. S.C.Code Ann. § 63-3-530 (2010) (previously codified at sections 14-21-810 and 20-7-420). Subsection 14 grants the family court jurisdiction to order child support. Id. § 63-3-530(A)(14) (“The family court has exclusive jurisdiction to order support of a ... child.”). Our Legislature has defined a child as “a person under the age of eighteen.” Id. § 63-1-40(1) (formerly codified at section 20-7-30). In view of these inextricably linked code sections, I believe the Legislature clearly established the general rule that a parent’s payment of child support terminates once a child has reached the age of eighteen.

Section 63-3-530(A)(17), however, provides an exception to this general rule, stating that the family court has exclusive jurisdiction:

*664To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first; or without further order, past the age of eighteen years if the child is enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.

Id. § 63-3-530(A)(17) (previously codified at section 14-21-810(b)(4)) (emphasis added).

This section is silent with respect to a parent’s payment of college expenses for a child who has reached the age of majority. Instead, the above-emphasized language, which explicitly deals with a child’s education, clearly expresses the legislative intent that a family court may only order a parent to pay child support until a child’s high school graduation or until the end of a school year after the child reaches nineteen years of age. Had the Legislature intended for a parent to pay college expenses as an incident of continuing child support, I believe it would have specifically included the phrase “college graduation.” Because the Legislature has not authorized the family court to order such support, we must give effect to this legislative intent and conclude that the family court lacks jurisdiction to order a parent to pay college tuition as an incident of child support. See Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996) (recognizing that the primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature).

Moreover, the Legislature explicitly limited the jurisdiction of the family court over matters concerning a child’s post-majority financial situation. Pursuant to subsection 17, the family court may order payment of child support past the age *665of eighteen where: (1) the child has a physical or mental disability; or (2) “exceptional circumstances” are present. Id. § 63-3-530(A)(17).

By its very terms, the “age of majority” implies that a person has become self-sufficient and is responsible for his or her own financial endeavors. See S.C. Const, art. XVII, § 14 (“Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law shall be deemed sui juris and endowed with full legal rights and responsibilities____” (emphasis added)); see also Style v. Shaub, 955 A.2d 403, 408 (Pa.Super.Ct.2008) (defining the “age of majority” as “either eighteen years of age or when the child graduates from high school, whichever comes later”); 27C C.J.S. Divorce § 1106 (Supp.2010) (stating that “as an exception to the general rule that the obligation of a divorced parent to provide child support terminates upon the child reaching majority, a financially able divorced parent may be required to support an adult child who, by reason of physical or mental disability, is unable to support himself or herself’).

Contrary to these clear restrictions on a child’s right to receive financial support beyond the age of majority, the Court in Risinger classified a college education as an “exceptional circumstance.” In my view, this assessment was erroneous and should not serve as authority for the majority’s decision to legally obligate a parent to pay for a child’s post-majority college education.

Initially, as previously indicated, this language is outside the parameters of the educational provisions of section 63-3-530(A)(17). Furthermore, taken to its logical extreme, there would be no “cut-off’ date for this legal obligation as any child of divorce, including “adult” children, would be entitled to financial support from a parent. I do not believe this is what the Legislature intended by promulgating section 14-21-810(b)(4).

Notably, none of the cases that have cited Risinger in the past thirty years have involved a statutory or constitutional analysis of section 14-21-810(b)(4). Thus, I do not believe the majority can blindly adhere to Risinger and its progeny to justify its holding. Because the Legislature has not author*666ized the family court to order such support or created a statutory obligation for a divorced parent to pay for an adult child’s post-secondary education, I would overrule Risinger and, in turn, affirm our decision in Webb.

Based on my conclusion regarding the family court’s lack of jurisdiction, I do not believe it is necessary to address the constitutional implications of section 63-3-530(A)(17). Additionally, I would note that Father had previously agreed to pay a portion of Collin’s college expenses. Thus, the resolution of the instant case is not dependent upon a review of Webb. Accordingly, I would decline to revisit that opinion and to address the equal protection issue. See In re McCracken, 346 S.C. 87, 92, 551 S.E.2d 235, 238 (2001) (“[I]t is this Court’s firm policy to decline to rule on constitutional issues unless such a ruling is required.”). However, given the majority’s decision to rule on these issues, I must express my disagreement with the majority’s analysis.

The equal protection clauses of our federal and state constitutions declare that no person shall be denied the equal protection of the laws. U.S. Const, amend. XIV, § 1; S.C. Const, art. I, § 3. Equal protection “requires that all persons be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” GTE Sprint Commc’ns Corp. v. Pub. Serv. Comm’n of S.C., 288 S.C. 174, 181, 341 S.E.2d 126, 129 (1986) (quoting Marley v. Kirby, 271 S.C. 122, 123-24, 245 S.E.2d 604, 605 (1978)). “Courts generally analyze equal protection challenges under one of three standards: (1) rational basis; (2) intermediate scrutiny; or, (3) strict scrutiny.” Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d 917, 920 (2004). “If the classification does not implicate a suspect class or abridge a fundamental right, the rational basis test is used.” Id. “Under the rational basis test, the requirements of equal protection are satisfied when: (1) the classification bears a reasonable relation to the legislative purpose sought to be affected; (2) the members of the class are treated alike under similar circumstances and conditions; and, (3) the classification rests on some reasonable basis.” Id.

In view of the above-outlined law, it is arguable that this case should be analyzed under the strict scrutiny test as the *667reduction of a parent’s income clearly impinges upon a fundamental property right. See Wingfield v. S.C. Tax Comm’n, 147 S.C. 116, 152, 144 S.E. 846, 858 (1928) (“The court appreciates the earnest plea that every person is entitled to the enjoyment of life, liberty, and property, and to the equal protection of the laws guaranteed by the federal and state Constitutions, and will protect and safeguard these fundamental rights to the extent, if necessary, of declaring invalid any legislative enactment clearly shown to be in violation of them.”). I cannot conceive of any plausible argument that could withstand this heightened level of scrutiny. Moreover, as will be discussed, I believe there is an equal protection violation even under the rational basis test, the lowest level of scrutiny.

For several reasons, I disagree with the majority’s conclusion that requiring a parent to pay, as an incident of child support, for post-secondary education is rationally related to the State’s interest in ensuring the education of our state’s youth.

Initially, I would note that the out-of-state cases relied upon by the majority are distinguishable in that underlying those decisions is a statute that specifically provides for the payment of college expenses beyond the age of majority.9 In contrast, section 6S-3-530(A)(17) is silent with respect to the payment of college expenses. Despite the lack of this provision, the *668Court in Risinger interpolated into the statute a legal obligation for a parent. In my opinion, this was in error as a parent’s only financial responsibility for a child’s college expenses emanates from a moral obligation.

In reaching its decision, the majority seizes upon this moral obligation. A moral obligation, however, cannot substantiate the imposition of a legal obligation. Although I am cognizant of the deleterious financial and emotional effects of divorce, these alone do not justify disparate treatment of children of divorced families and children of intact families. The children are similarly situated in that they are over the age of eighteen and desire parental financial support for college education. See Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995) (“The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment.”). In analyzing this distinction, the question becomes whether section 63-3-530(A)(17), as interpreted in Risinger, creates a legal duty that is confined to situations of separated, divorced, or unmarried parents and their children. Thus, I disagree with the majority’s class designation because I believe the class created by section 63-3-530(A)(17) is composed of separated, divorced, or unmarried parents and their children versus the parents and children of intact families. In my opinion, the State does not have a legitimate interest in treating separated, divorced, or unmarried parents and their children differently than their intact counterparts.10

In reaching this conclusion, I am persuaded by the factually-similar case of Curtis v. Kline, 542 Pa. 249, 666 A.2d 265, 270 (1995), wherein the Pennsylvania Supreme Court refutes the majority’s position that only children of divorce are entitled to post-majority financial support from their parents.

*669In Curtis, the court held that a statute requiring separated, divorced, or unmarried parents to provide post-secondary educational support to their adult child violated the Equal Protection Clause of the Fourteenth Amendment. Curtis, 666 A.2d at 270. In so holding, the court reasoned:

Act 62 classifies young adults according to the marital status of their parents, establishing for one group an action to obtain a benefit enforceable by court order that is not available to the other group. The relevant category under consideration is children in need of funds for a post-secondary education. The Act divides these persons, similarly situated with respect to their need for assistance, into groups according to the marital status of their parents, i.e., children of divorced/separated/never-married parents and children of intact families.
It will not do to argue that this classification is rationally related to the legitimate governmental purpose of obviating difficulties encountered by those in non-intact families who want parental financial assistance for post-secondary education, because such a statement of the governmental purpose assumes the validity of the classification. Recognizing that within the category of young adults in need of financial help to attend college there are some having a parent or parents unwilling to provide such help, the question remains whether the authority of the state may be selectively applied to empower only those from non-intact families to compel such help. We hold that it may not. In the absence of an entitlement on the part of any individual to post-secondary education, or a generally applicable requirement that parents assist their adult children in obtaining such an education, ... we perceive no rational basis for the state government to provide only certain adult citizens with legal means to overcome the difficulties they encounter in pursuing that end.

Id. at 269-70; see Grapin v. Grapin, 450 So.2d 853, 854 (Fla.1984) (recognizing that the “societal ideal of continued parental support for the education and training” of adult children did not create a legal duty, and characterizing a family court’s order to do so as an “indirect method of compelling unwilling divorced parents to provide college costs for their capable adult children”).

*670In view of the foregoing, I believe that Risinger is a fallacy borne of noble purpose. Noble purpose, notwithstanding, this Court has no authority to legislate from the bench. Consequently, I would reverse the family court’s order with respect to Father’s payment of Collin’s college expenses as I cannot cavalierly disregard the Legislature’s express limitations on the family court’s jurisdiction and the obvious equal protection deficiency of the Risinger decision.

PLEICONES, J., concurs.

. See Kujawinski v. Kujawinski, 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382, 1390 (1978) (analyzing section 513 of the 1977 Illinois Revised Statutes, which states in relevant part, “The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age.”); In re Marriage of Vrban, 293 N.W.2d 198, 201-02 (Iowa 1980) (interpreting section 598.1(2) of the 1977 Iowa Code which provides that "child support" may include support “for a child who is between the ages of eighteen and twenty-two years who is regularly attending an approved school ..., or is, in good faith, a full-time student in a college, university, or area school; or has been accepted for admission to a college ...”); LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350, 1357 (1993) (interpreting sections 458:17 and 458:20 of the New Hampshire Revised Statutes that specifically provide for a divorced parent’s payment of reasonable college expenses for an adult child), superseded by, N.H.Rev.Stat. Ann. § 461 (2005) (enactment of “Parental Rights and Responsibilities Act”).

. Furthermore, I would note that the majority defines the class as “divorced versus non-divorced parents," and distinguishes the class designation in Webb as "parents subject to a child support order at the time of emancipation versus those who are not subject to one.” In my view, this distinction is inconsequential given the rarity of a divorce decree involving children that does not include a child support provision and the existence of a child support order involving an intact family. Thus, I believe the majority's class designation is the same as the one espoused in Webb.