Homeschooling: A Potentially Relevant Factor in Awarding Final Spousal Support

By Annie Scardulla

Does a parent’s duty to financially support his or her children outweigh a parent’s duty to provide his or her children with an education? This is a question some believe the Louisiana Supreme Court answered in the negative in its recent opinion, Rhymes v. Rhymes.1 Reversing both the district and appellate level courts, the Louisiana Supreme Court held that homeschooling is a potentially relevant legal factor when awarding final spousal support under Louisiana Civil Code articles 111 and 112.2

This legal issue of first impression arose in the context of a relatively typical divorce proceeding. Both mechanical engineers, Timothy and Dina Rhymes were married on September 1, 1990.3 They had two children: Lucy, born in 1999, and Jack, born in 2003.4 Finding the public school system in Baton Rouge to be inadequate and the private system too expensive, Timothy and Dina mutually agreed that she would stop working and homeschool the children.5 Dina provided adequate homeschooling instruction for the children from the age of five until trial.6

Dina and Timothy were divorced in July 2009.7 Dina was named the domiciliary parent, and, being without fault, she attempted to collect final spousal support from Timothy.8 In doing so, she claimed that her continued homeschooling of the children was a relevant factor in allocating final support.9 While Timothy tried to argue that his children should be placed in public schools, he agreed that the children could be homeschooled.10 Additionally, a court-appointed educational evaluator testified that the “children were ‘absolutely’ ‘thriving in home school.’”11

Applying the above facts, the majority released a fairly simple and straightforward opinion. First, the court looked to the language of the relevant code articles. Louisiana Civil Code article 111 provides:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.12

Article 111 is then enforced through Louisiana Civil Code article 112. Article 112 regulates the amount and duration of final support with the following:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.

B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:

(1) The income and means of the parties, including the liquidity of the means
(2) The financial obligations of the parties
(3) The earning capacity of the parties
(4) The effect of custody of children upon a party’s earning capacity
(5) The time necessary for the claimant to acquire appropriate education, training, or employment
(6) The health and age of the parties
(7) The duration of the marriage
(8) The tax consequences to either or both parties.

C. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.13

Looking to the plain language of these provisions, the court noted two things: (1) articles 111 and 112 are the exclusive provisions that control an award of final support; provisions on child support and custody do not come into play; and (2) the use of the term “may” in article 112 is clear and unambiguous, making its list of factors illustrative not exhaustive.14 The court further explained that homeschooling may be considered as a factor in distributing final support if it is relevant, and whether a certain factor is relevant should be determined on a case-by-case basis.15 Under the facts of this case, the court held that the lower courts erred as a matter of law in failing to consider homeschooling as a relevant factor in the determination of final support for Dina.16

Pretty simple holding, right? The statute is clear, so we do what the statute says. The parents agreed that their kids would be homeschooled, so the homeschooling factor is relevant. This simplicity begs the question, however, of why this case had to go to the Louisiana Supreme Court. What was it that the lower courts found so wrong with homeschooling being considered as a legal final support factor?

The answer seems to be policy-driven. The district court specifically noted that under Louisiana Civil Code article 227, parents have an obligation to support, maintain, and educate children, and “one spouse cannot choose the education obligation to the exclusion of the [other parental obligations].”17 The Louisiana Third Circuit agreed, noting that “the main competing interests are the duty owed by a spouse to support her children and her voluntary unemployment versus that spouse’s right to make major decisions regarding her children’s education.”18 The court went on to reiterate that “a spouse’s voluntary unemployment in order to homeschool cannot be attributed to the other spouse in determining final periodic support.”19

Both lower courts cited Donna G.R. v. James B.R., a Louisiana Second Circuit case that held homeschooling was not in the children’s best interest.20 In reaching its holding, the Donna court provided:

Donna’s decision as domiciliary parent is outweighed by the economic obligation for the maintenance and support of her children and the increased obligation of spousal support from James which her decision implicates. The parties’ use of the public school system, which is the subject of much public policy of this state, will obviously provide economic benefit to the children by freeing Donna to find employment.21

In a way, this “competing duty” rationale articulated by the lower and Donna courts makes sense. Especially in the 1990s, final support was understood as a temporary means to an end.22 The collecting spouse was expected to get back to work as soon as possible absent limited emergency circumstances.23 It does not seem completely unreasonable that courts would be hesitant to automatically accept rationale that could allow the voluntary decisions of the domiciliary spouse to potentially extend the duration and amount of final spousal support to the detriment of the payor spouse.

The Louisiana Supreme Court, however, was unwilling to delve into such a theoretical discussion, unfettered by the potential consequences that concerned the lower courts. Only time will tell the practical effects of this decision. For now, however, the door is open. Spouses looking to collect final support can make the argument that truly anything is relevant in setting the amount and duration of their award.

1 125 So. 3d 377 (La. 2013).

2 Id. at 378; La. Civ. Code arts. 111, 112 (2013).

3 Rhymes, 125 So. 3d at 378.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id. at 380.

10 Id. at 378.

11 Id. at 379.

12 La. Civ. Code art. 111 (2013).

13 Id. art. 112. (emphasis added).

14 Rhymes, 125 So. 3d at 381–82.

15 Id. at 382. “Much as a court considers the effect of custody upon a party’s earning capacity, we find the court may likewise consider the effect the duties and obligations associated with homeschooling have on the earning capacity of the parent undertaking the children’s instruction.” Id.

16 Id. The court pointed to certain facts in supporting its conclusion that homeschooling was a relevant final support factor in this case: (1) both parents agreed their children would be homeschooled; (2) there was evidence that the children were well-educated and thriving in the homeschooling environment; and (3) Dina’s obligation to homeschool the children had an effect on her earning capacity as she spent approximately 27.5 hours per week on school work. Id.

17 Id. at 379.

18 Rhymes v. Rhymes, 110 So. 3d 286, 288 (La. Ct. App. 2013).

19 Id.

20 877 So. 2d 1164 (La. Ct. App. 2004).

21 Id. at 1169.

22 John A. Lovett, Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction, 72. La. L. Rev. 923, 957–59 (2012).

23 Id.