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McSween v. Iannibelli, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-1253, July 8, 2014

In McSween v. Iannibelli, the Massachusetts Appeals Court vacated and remanded a modification judgment regarding the cost of private secondary education.

The Plaintiff/father and mother were married in 1993 and divorced in 2001. They had one daughter from the marriage. The judgment of divorce required the father to pay $210 a week in child support. A modification judgment, which incorporated an agreement between the parties, entered in 2005 which increased the father’s parenting time and provided that the parties would submit disputes of legal custody, including education, to a parent coordinator. In 2011, the parties could not reach an agreement about the child’s continuing private school education. Mother filed a modification and father filed a counterclaim. At trial, the judge credited the father’s testimony that there was no express agreement between the parties to share in private school beyond the child’s first year at Nazareth Academy, and found that the mother enrolled the daughter at Notre Dame Academy for her sophomore year without the agreement of the father and after he expressed an inability to pay. The judge further found that it was not equitable to require the father to retroactively reimburse the mother for the child’s tuition at Notre Dame. Prior to the daughter’s freshman year, the parties were in agreement that the daughter would attend Nazareth Academy for all four years of high school. The judge further found that by not filing a complaint for contempt, he acquiesced in the mother’s unilateral decision to enroll the daughter after an agreement could not be reached. The Father appealed.

 

The Massachusetts Appeals Court noted that under Mandel v. Mandel, 74 Mass.App.Ct. 348, 906 N.E.2d 1016 (2009), a party who disagrees over which college a child will attend, but who does not seek relief from the court until the college selection process has been completed "may have waived his or her right to object to the college and its concomitant cost." However, the Appeals Court found that Mandel was not controlling in this case. The Appeals Court found that the father did not waive any rights because he objected to the private school attendance and suggested to the mother that they consult the parent coordinator to resolve the matter. The parties had previously agreed to consult a parent coordinator in order to resolve disputes over education prior to seeking court intervention. Further, the Appeals Court found that the "basis of the judge’s decision to reject the father’s argument is unclear" but to the extent that the judge’s decision rested on a waiver by the father, it was erroneous. As a result, the Appeals Court concluded that it was necessary to remand the matter in order to provide the judge with an opportunity to make specific findings with respect to whether the father had the ability to pay for 35% of the education cost during the child’s third and fourth year and whether it was in the child’s best interest to attend private school.

Finally, the father also argued on appeal that the trial judge failed to account for his increased parenting time over the summer months. However, the Appeals Court found there to be conflicts in the testimony, and that the judge made no findings on the issue, such that the Court was unable to determine whether and how the judge considered the increased parenting time.