Matthew Lane & Associates, P.A.
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Divorce Child Support - College Expenses

In a divorce proceeding, an agreement to provide for a child's college expenses includes an agreement to provide for room and board. In Weaver v. Corey the Florida Court of Appeal stated that: "The Former Wife and Former Husband entered into a marital settlement agreement...as part of the dissolution of their marriage....By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school. 

Specifically, the agreement provided that '[b]oth parties agree that each will use their best efforts to provide funds' and that '[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.' The parties' oldest child, James Dalton Weaver, graduated from high school in December 2008 and enrolled in college the next month. The Former Husband began to contribute to the cost of James' college expenses. However, there came a time when the Former Husband did not pay the full amount of the college expenses as expected by his now adult son and the Former Wife, and they sued the Former Husband for breach of contract. The trial court found that the Former Husband had not used his best efforts in supplying the costs of his son's college education and entered an order requiring the Former Husband to pay a total of $41,603 to the son and the Former Wife as the costs of the college education.

On appeal, the Former Husband argues that the trial court failed to take into account the Former Wife's failure to exercise her best efforts to contribute funds, as is also required by the agreement. Specifically, the Former Husband maintains that the Former Wife was willfully underemployed causing her annual income to range from $300 to $8500. When compared to the Former Husband's income, the ratio described in the marital settlement agreement required the Former Husband to pay the equivalent of 97.4% to 99.9% of the son's college expenses. The Former Husband argues that the trial court's failure to consider the Former Wife's willful underemployment in considering whether she was exercising her best efforts was error. We disagree.

Although the agreement does suggest that each of the parties agreed to exercise his/her best efforts, the Former Husband did not plead the failure of the Former Wife to do so as an affirmative defense, nor did he argue this failure at trial. The only reference to 'best efforts' at trial was the Former Husband's argument that he indeed had exerted his best efforts by paying a portion of the costs even though he had not paid all of the costs. As such, the trial court determined the only issue that had been placed before it-whether the Former Husband exercised his best efforts in paying for the college expenses.

Because the Former Husband did not plead the Former Wife's failure to employ her best efforts as an affirmative defense and did not argue the issue at trial, we cannot review this theory of defense for the first time on appeal. Dober v. Worrell, 40l So.2d 1322,1323 (Fla. 1981) ('[F]ailure to raise an affirmative defense before a trial court... precludes raising that issue for the first time on appeal.'). Accord­ingly, we affirm the trial court's award.

The Former Husband also argues on appeal that the trial court erred in calculating its award of total college costs by including room and board. He maintains that the college expenses contemplated in the marital settlement agreement included only tuition, books, and fees but not room and board. Florida courts, however, have 'generally recognized that such expenses are factored into the cost of higher education.' Reynolds v. Diamond, 605 So. 2d 525,527 (Fla. 4th DCA 1992)."

To speak to a divorce attorney in Palm Beach Gardens, Florida about child support call Matthew Lane & Associates, P.A. at (561) 651-7273.

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