The
court ruled in Gelman v. Gelman, 24 So.3d 1281
(Fla. 4th DCA 2010) that it was :
ERROR TO REQUIRE HUSBAND TO PAY CHILDREN'S PRIVATE SCHOOL TUITION WHERE
WIFE'S COUNTER-PETITION DID NOT CONTAIN REQUEST FOR TUITION, HUSBAND DID NOT
AGREE TO PAY AND COURT DID NOT MAKE FINDINGS AS TO ABILITY TO PAY AND WHETHER
SUCH EXPENSES WERE IN ACCORD WITH CUSTOMARY STANDARD OF LIVING AND IN THE
CHILDREN'S BEST INTERESTS.
The trial court
directed the Former Husband to pay the minor children's private school tuition.
The District Court reversed:
1. "A court
may order a non-custodial parent to pay for private educational expenses if it
finds that the parent has the ability to pay for private school and the
expenses are in accordance with the family's customary standard of living and
are in the child's best interest."
2. "Former
Husband contends that the trial court improperly ordered him to pay the
children's private school tuition because Former Wife did not plead for the
award and the trial court failed to make requisite findings of fact…."
3. "Former
Wife's counter-petition did not contain a request for payment of private school
tuition. Moreover, there is no record evidence establishing that Former Husband
agreed to pay the tuition. Finally, the court did not make the requisite
findings as to whether Former Husband has the ability to pay the tuition, and
whether the private school expenses are in accordance with the family's
customary standard of living and are in the children's best interest."
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