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Dyke v. Scopetti

Supreme Court of Vermont

April 3, 2015

Kimberley Dyke
Frank Scopetti

On Appeal from Superior Court, Orange Unit, Family Division. Robert P. Gerety, Jr., J.


Todd C. Steadman of Davis Steadman & Ford LLC, White River Junction, for Plaintiff-Appellee.

George E. Spaneas of Spaneas Law Office, Lebanon, New Hampshire, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


Page 685


[¶1] This case involves a father's obligation to pay college tuition for his daughters pursuant to a Pennsylvania child-support order. Father appeals the trial-court order requiring him to pay specified college-tuition costs for his two daughters. We affirm.

[¶2] The underlying facts are not in substantial dispute. The parties, father Frank A. Scopetti, Jr., and mother Kimberley Marie Scopetti, were married in Pennsylvania and had two daughters. They entered into a separation agreement on July 30, 1998, when their elder daughter, Indie, was six years old, and their younger daughter, Francesca, was five years old. The separation agreement is a two-page, handwritten document. Paragraph 4 of the agreement provides:

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" Frank Scopetti agrees to provide college tuition for Francesca and Indie [at] an institution acceptable to Frank Scopetti." The separation agreement was incorporated into a final decree of divorce issued in Pennsylvania on May 18, 2000.

[¶3] Following the parties' divorce, mother and the daughters moved to Vermont, and father moved to Arizona. On September 28, 2010, mother registered the parties' Pennsylvania support order in Vermont.[1] That fall, Indie began studying at George Mason University (GMU) in Virginia. During the 2010-11 school year, father paid only a portion of Indie's tuition.

[¶4] On August 19, 2011, mother filed a motion to enforce Paragraph 4 of the separation agreement. In response, father argued that he was not obligated to pay any college tuition because the parties' agreement was illusory and unenforceable. He further argued that even if the contract was enforceable, his obligation to " provide college tuition" was excused by the nonoccurrence of the condition precedent: father's " acceptance" of the choice of institution. Finally, he argued that $10,000 per year was a reasonable amount under Paragraph 4, and that the sums he had already paid toward the daughters' college tuition represented an amount that was acceptable to him because it was all he could afford.

[¶5] In a December 2012 order, the magistrate granted mother's motion to enforce. The magistrate concluded that " [i]t was clearly the intention of the parties that [father] would be responsible for college tuition costs albeit with some input as to the extent of his obligation provided by the requirement of consultation and approval." The magistrate concluded that " [n]oncompliance with a consultation condition ... should not eliminate the obligation completely, but should require that the obligor parent assume some reasonable portion of the child's educational expenses." The magistrate noted that various courts have found that " [w]hat is considered 'reasonable' ... may vary depending on a variety of circumstances," including the costs of comparable colleges, the parents' ability to pay and station in life, the parents' own education (and their " collegiate expectations" for their children), and the child's educational needs. The magistrate scheduled a further hearing to determine what a " reasonable" contribution would be.

[¶6] In April 2013, the magistrate held a hearing to determine what a " reasonable" amount was for father to contribute for his daughters' college tuition. The magistrate made the following findings.[2] Both daughters did well in high school and chose practical educations that would enable them to be employed immediately upon graduation. Indie chose nursing as a career and had the goal of advanced degrees in that field. She chose to attend GMU because it was near a city and had a respected nursing program. Father never told Indie that he found GMU acceptable. Indie did not apply to the nursing program at the University of Vermont (UVM), where she would have paid the in-state student rate (which was $12,888 in 2011-12,

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and $13,344 in 2012-13). Nor did she want to attend college in Arizona.

[¶7] For the 2010-11 school year (Indie's freshman year), tuition was $25,440, and her total cost of attendance was $38,233. She received scholarships and grants of $12,100 and a work-study grant of $2,250. Father paid $13,500 toward Indie's tuition. Indie took out loans to cover the remaining costs.

[¶8] For the 2011-12 school year (Indie's sophomore year), GMU's cost of attendance was $43,193, with tuition accounting for $27,000 of that amount. Indie received $17,300 in scholarships and grants, and $2,000 in work-study. Father paid $15,201 toward GMU tuition, and Indie covered the balance with loans.

[¶9] Indie then transferred to the University of Maryland Baltimore School of Nursing (UMSON) in the fall of 2012. She did not get father's approval for the transfer. Indie believed that UMSON offered a higher-status clinical program and school ranking than GMU. The cost of attendance at UMSON for the 2012-13 school year was $57,087, with tuition accounting for $27,012 of that amount. While the UMSON tuition was comparable to GMU, Indie's actual costs were significantly higher because Indie forfeited the scholarship and grant funds that she had received at GMU. As a transfer student, she was eligible only for a Pell Grant of $3,200. Father paid $5,000 toward her fall 2012 tuition, and at the time of the April 2013 hearing had not made any payment for the spring term. Indie took out $36,500 in loans to cover the balance of the costs.

[¶10] In the fall of 2011, Francesca enrolled in the four-year dental-hygiene program at the University of New England (UNE) in Maine. Although Vermont Technical College (VTC) offers a two-year dental-hygiene program, no institution in Vermont offers a baccalaureate dental-hygiene program, which offers better career opportunities and higher earning potential than two-year programs. Northern Arizona University has a dental-hygiene program comparable to UNE's, but Francesca lived in Arizona for a short time and did not like it there. The cost of attendance at UNE for the 2011-12 and 2012-13 school years combined was $88,546.72, of which $60,180 was tuition. Francesca earned scholarships and grants of $46,400 over these first two school years, and father paid $18,845.27 toward UNE tuition. Francesca took out loans to meet the difference.

[¶11] The magistrate found that the daughters grew up in a " very modest living situation" with a mother who worked two jobs, attended college classes at night, and recently received an online degree qualifying her to be an administrative assistant in health care. Mother and ...

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