This summer, the Georgia Court of Appeals addressed a case involving the payment of a child’s private school tuition in lieu of paying child support directly to the child’s custodial parent. Although it is never advisable for a parents to ignore or unofficially modify a court’s child custody or child support order, the case of Jackson v. Sanders, A15A0127 (Ga. Ct. App. July 16, 2015), seems to suggest that payment of a child’s expenses may count as child support.
In Jackson, the couple divorced in 2001, when their son was less than a year old. As the non-custodial parent, Jackson (father) was ordered to pay Sanders (mother) $1,005 per month as child support for the benefit of their minor child. Jackson paid child support as ordered until 2012, when both parents agreed that instead of paying child support directly to Sanders, Jackson would pay an equivalent amount to N. J.’s new private school for Sanders’s half of the tuition. In Sept. 2012, Jackson filed a motion to modify child custody. In response, Sanders counterclaimed seeking over $14,000 in unpaid child support. Although Jackson responded to Sanders claim by showing he did indeed provide support to his son by making payments toward his private school tuition, the trial court nevertheless found that Jackson owed over $27,000 in unpaid child support.
Jackson appealed the trial court’s decision, and the Court of Appeals ultimately sided with Jackson holding:
The trial court was indeed correct that, “while parties may enter into an agreement concerning modification of child support, the agreement becomes an enforceable agreement only when made the order of the court.” Nevertheless, our Supreme Court has recognized that there are certain equitable exceptions to that general rule. And included among these “equitable exceptions are situations where the mother has consented to the father’s voluntary expenditures as an alternative to his child-support obligation, or where the father has been in substantial compliance with . . . the divorce decree, for example, where he has discontinued child support payments while he had the care and custody of the children and supported them at the mother’s request.
Here, Jackson and Sanders did not modify the amount of Jackson’s child-support obligation as set forth in the 2001 Judgment. Instead, they merely agreed that Jackson would pay an equivalent amount for Sanders’s half of N. J.’s private-school tuition as an alternative to paying her directly. And our Supreme Court has held that such an agreement was valid under nearly identical circumstances. Thus, the trial court erred in ordering Jackson to pay $27,135 in past due child support, and we reverse its judgment in this respect.
Id. (Quotations in original. References omitted). Thus, when read with prior Georgia cases addressing this issue, Jackson may indeed allow for non-custodial parents to pay children’s expenses, such as private school tuition, in lieu of direct child support payments to a custodial parent. See Nagle v. Epstein, 241 Ga. 612, (1978) (affirming the trial court’s judgment that the husband was not in contempt for failing to pay past-due child support when he testified that the parties agreed that the wife would accept the his payment of their son’s private-school tuition in lieu of an equivalent amount of past-due child support and the wife did not testify otherwise).