BRYNES v. Caldwell

654 A.2d 1125, 439 Pa. Super. 574

• Court: Superior Court of Pennsylvania
• Decided: May 18, 1995
• Status: Published

Opinions

ROWLEY, President Judge:

In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992, our Supreme Court held that a divorced parent, like any other parent, owes a duty of support to his or her child until the later of the child’s eighteenth birthday or graduation from high school, but not beyond. Pivotal to the Court’s decision was the fact that no parental duty to contribute to a child’s post-secondary education had been imposed by the General Assembly despite that body’s active involvement in domestic matters via the Divorce Code and Domestic Relations Act.

The following year the General Assembly enacted 23 Pa. C.S. § 4327 (“Act 62”) with the stated intention of codifying the decisions of this Court, in Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), and subsequent cases, establishing the obligation of parents who are separated, divorced, unmarried, or otherwise subject to an existing support obligation to contribute, as and where appropriate, to a child’s post-secondary education. By its terms Act 62 applies not only to support actions pending at the time of its enactment, but also to support orders in effect on or entered since November 12,1992, the day before the Supreme Court handed down its decision in Blue.

The obligation of appellant Harry D. Caldwell (“Father”) to contribute to the support of his college-age daughter, Elizabeth Caldwell, was terminated after the Supreme Court’s decision in Blue and restored after the legislature’s enactment of Act 62. Father’s timely appeal from the trial court’s order of February 15, 1994, restoring his support obligation hás been certified to this Court en banc for resolution of two constitutional issues raised therein:

1) Does Act 62 violate the equal protection clauses of the United States and Pennsylvania constitutions?

2) Does retroactive application of Act 62 constitute a constitutionally impermissible ex post facto law?

In addition to these constitutional claims, Father asserts the statutory defenses of undue hardship and estrangement. Concluding, after careful consideration, that none of Father’s claims entitles him to relief, we affirm the order of the trial court.

Elizabeth Caldwell was born to Father and appellee Kathleen M. Byrnes (“Mother”) on August 18, 1974. The parties separated in 1985 and were divorced in 1989. Elizabeth has lived with Mother since the parties’ separation. On April 23, 1992, Mother filed a petition requesting that Father be ordered to pay college tuition for Elizabeth. Pursuant to Pa. R.C.P. 1910.3(4), Elizabeth provided her written consent to the petition. On July 2, 1992, Father responded with a petition requesting that the trial court vacate an existing order of support as of Elizabeth’s upcoming eighteenth birthday, August 18, 1992.

Elizabeth began her studies at Gwynedd Mercy College in the fall of 1992. On November 13, 1992, the Supreme Court decided Blue. Shortly thereafter, the trial court granted Father’s petition and discharged his support obligation. Within a week of the legislature’s enactment of Act 62, Mother petitioned the trial court to open or reinstate its order of support.

On February 15, 1994, following a master’s hearing and a subsequent de novo hearing before the trial court, the trial court entered an order directing Father to pay the following:

1) 55% of the cost of Elizabeth’s tuition, fees, books, and other educational materials, after deduction of scholarships, Father to pay this amount within thirty days after the bills for these expenses are submitted to him;

2) support in the amount of $75.00 per week while Elizabeth resides with Mother and commutes to college;

3) $50.00 per week on arrearages (i.e., Father’s portion of Elizabeth’s past college expenses); and

4) 55% of Elizabeth’s unreimbursed medical and dental expenses.

This timely appeal followed. We note that notice of the appeal has been given to the Attorney General of the Commonwealth, as is required where the constitutionality of a statute is challenged.

I. Non-constitutional Claims

It is a well-settled principle that we will not decide a constitutional question unless absolutely required to do so. Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 615, 585 A.2d 1091, 1096 (1991) (en banc), aff'd, 535 Pa. 252, 634 A.2d 1099 (1993). Accordingly, we turn to the fact-based defenses asserted by Father. If either of those claims affords him relief, we will not be required to consider his constitutional challenges to the statute. The burden is on the person asserting undue hardship, 23 Pa.C.S. § 4327(f)(1), or estrangement, 23 Pa.C.S. § 4327(e)(5), to prove his or her assertion by the fair weight and preponderance of the credible evidence. In considering such a claim, we will not disturb the determination of the trial court (i.e., the factfinder) absent an abuse of discretion. McGettigan v. McGettigan, 433 Pa.Super. 102, 106-07, 639 A.2d 1231, 1233 (1994) (citing Blue). An abuse of discretion is not merely an error of judgment; rather, it is the overriding or misapplication of the law, a manifestly unreasonable judgment, or a judgment resulting from partiality, prejudice, bias, or ill will. Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982), quoting Garrett’s Estate, 335 Pa. 287, 293, 6 A.2d 858, 860 (1939).

A. Undue Hardship

We consider, first, Father’s assertion of undue hardship. Act 62 provides in pertinent part that “[a] court shall not order support for educational costs if ... [u]ndue financial hardship would result to the parent.” 23 Pa.C.S. § 4327(f)(1). The trial court found that its order would not result in undue hardship to Father.

Father has failed to persuade us that the trial court has abused its discretion in this regard. The trial court found that Elizabeth’s college tuition and incidental expenses totaled approximately $11,400.00 per year and that she had obtained $4,000.00 in scholarships, leaving an amount due of $7,400.00. In addition, the trial court found that Father’s net monthly income is $8,634.00. Father does not challenge these figures, but merely asserts that he will suffer undue hardship if required to pay $216.65 per month on arrears and $324.98 per month in support, as well as the lump sum of $4,070.00 per year.

Father provides us with no information concerning, inter aha, his assets, expenses, or ability to borrow. Having been given no explanation as to why the obligations set forth in the trial court’s order will cause him to suffer undue hardship, we conclude that the trial court did not abuse its discretion in this regard.

B. Estrangement

We reach the same conclusion with regard to Father’s asserted defense of estrangement. As the trial court notes, one factor to be considered in deciding whether to require a parent to contribute to a child’s post-secondary educational costs is “[a]ny willful estrangement between parent and student caused by the: student after attaining majority.” 23 Pa.C.S. § 4327(e)(5) (emphasis added). Our Court has held that

[estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand.

Fager v. Fatta, 395 Pa.Super. 152, 156, 576 A.2d 1089, 1091 (1990) (quoting Bedford v. Bedford, 386 Pa.Super. 349, 358, 563 A.2d 102, 106 (1989)). In light of the legislature’s stated intention to codify pre-Blue case law with the enactment of Act 62, we conclude that this Court’s rulings on estrangement apply to cases, such as the one before us, arising under that statute.

In the present case, the trial court found that Father “has made absolutely no effort to maintain any contact or relationship with Elizabeth since she was approximately 12 or 13 years old.” Trial Court Opinion at 3. Father’s testimony at the trial de novo supports this finding. Father asserts that Mother has prevented him from contacting Elizabeth and that since Elizabeth turned eighteen she has not contacted him. Even if Father’s assertions are true, they do not indicate that Elizabeth, since reaching the age of eighteen, has willfully estranged herself from Father. We conclude, therefore, that Father has failed to prove an abuse of discretion concerning the issue of estrangement.

II. Constitutional Claims

As neither of these defenses entitles Father to relief, we consider his constitutional challenges to Act 62. In doing so, we are mindful that

[a party challenging the constitutionality of a statute] carries a heavy burden of persuasion. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. Id.; Parker v. Children’s Hospital of Pennsylvania, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). In determining the legislature’s intent in writing the statute at issue, we .presume that the legislature did not intend to violate the state or federal Constitution. 1 Pa.C.S. § 1922(3); Krenzelak v. Krenzelak, [503 Pa. 373, 381, 469 A.2d 987, 991 (1983) ]. All doubts must be resolved in favor of a finding of constitutionality. Consumer Party v. Commonwealth, 510 Pa. at 175, 507 A.2d at 332; Parker v. Children’s Hospital, 483 Pa. at 116, 394 A.2d at 937.

Jenkins v. Hospital, 401 Pa.Super. at 616, 585 A.2d at 1096-97 (additional citation omitted).

A. Retroactivity

Appellant’s first constitutional claim is that insofar as Act 62 is retroactive to November 12, 1992, the day before the Supreme Court’s decision in Blue, it is an ex post facto law and therefore violative of both the United States¹ and Pennsylvania² constitutions. Appellant cites no case law to support this claim. If we interpret appellant’s claim narrowly, there is in fact no case law to be cited in its support, for

the term “ex post facto” as used in the Constitutions of the United States and Pennsylvania applies only to penal statutes and “may be defined as [a law] which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment or changes the rules of evidence by which less or different testimony is sufficient to convict....”

Wood v. City of Pittsburgh, 74 Pa.Commw. 450, 460 A.2d 390, 392 (1983), quoting Kastner v. Com., Department of Transportation, 46 Pa.Commw. 97, 99, 405 A.2d 1133, 1134 (1979), quoting Myers v. Lohr, 72 Pa.Super. 472, 474 (1919) (emphasis in original). Accord Commonwealth ex rel. Wall v. Smith, 345 Pa. 512, 29 A.2d 912 (1942) (ex post facto law is one which makes a crime of an act which was not a crime when committed, or which increases punishment for an act already committed). Because Act 62 is civil, not penal, it cannot be an ex post facto law.

If we interpret Father’s claim more broadly, as simply a constitutional challenge to the retroactivity provision of Act 62, we reach the same result. “Neither the federal constitution nor our state constitution invalidates a non-penal statute merely because it is retroactive, unless such legislation impairs contractual or other vested rights.” Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 167, 532 (1987), aff'd, 488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989), cited in Jenkins v. Hospital, supra, 401 Pa.Super. 604, 585 A.2d 1091. Father identifies no vested right that is impaired by the retroactive application of Act 62. We adopt as our own the trial court’s analysis and resolution of this issue:

In Hecker v. O’Connell, [427 Pa.Super. 608,] 629 A.2d 1036 (1993)[,] our Superior Court held that. Act 62 “codified the substantive law appearing in Ulmer v. Sommerville, [supra, 200 Pa.Super. 640, 190 A.2d 182] and subsequent Superior Court decisions. See Preamble to Act 62. The Legislature also provided that Act 62 should be applied retroactively to November 12, 1992, one day prior to our Supreme Court’s decision in Blue” [supra, 532 Pa. 521, 616 A.2d 628]. The intent of Act 62 was to reinstate and codify the Pennsylvania decisional law of almost thirty (30) years standing regarding college support. As the Superior Court held, “It is clear that the Legislature intended the statute to take effect retroactively to prevent the invalidation of college support orders entered prior to the decision in Blue,” Heckler [sic], supra, [427 Pa.Super. at 611] 629 A.2d ... at 1037. Clearly, [Father’s] potential liability for Elizabeth’s college education was the law of the Commonwealth at the time she was born and it remained so until the Supreme Court’s decision in Blue on November 13, 1992. [Father’s] retroactivity argument thus must fail.

Trial Court Opinion, 2/15/94, at 5-6.

B. Equal Protection

Finally, Father argues that Act 62 violates the equal protection clauses of the United States and Pennsylvania constitutions by imposing upon parents who are divorced, separated, unmarried, or subject to an existing support obligation, but not upon parents who remain married, the duty to contribute to a child’s post-secondary education. For the following reasons, we conclude that this claim is without merit.

The federal Constitution provides in pertinent part that [n]o State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1. The analogous provisions in our state Constitution are the following:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. .

Pa. Const, art. I, § 1.

The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law____

Pa. Const, art. Ill, § 32. “In the equal protection area ... we have chosen to be guided by the standards and analysis employed by the Supreme Court and have adopted those standards and analysis” in interpreting these provisions of our Constitution. Dansby v. Thomas Jefferson University Hospital, 424 Pa.Super. 549, 556, 623 A.2d 816, 820 (1993), quoting Commonwealth v. Parker White Metal Co., 512 Pa. 74, 83, 515 A.2d 1358, 1362 (1986).

It is the case, as Father contends, that with regard to the support of college-age- students the legislature has chosen to treat parents who are separated, divorced, unmarried, or otherwise subject to an existing support obligation differently from parents who remain married in an intact family situation:

However, principles of equal protection do not absolutely prohibit a state from classifying persons differently and treating the classes in different ways. James v. Southeastern Pennsylvania Transportation Authority, [505 Pa. 137, 144, 477 A.2d 1302, 1305 (1984) ]. Equal protection requires that uniform treatment be given similarly situated parties. If distinctions are drawn, then the challenged policy must be reasonably justified. The level of justification required will depend upon the type of classification drawn and the governmental interest in promulgating the classification, and the relationship between that interest and the classification itself. Smith v. City of Philadelphia, 512 Pa. 129, 137-138, 516 A.2d 306, 310-311 (1986).

Dansby v. Thomas Jefferson, 424 Pa.Super. at 557, 623 A.2d at 820.

In considering an equal protection challenge, our standard of review depends upon the type of classification at issue. A classification involving a suspect class or a fundamental right will be subject to strict scrutiny, the most stringent standard of review. A classification involving a sensitive classification or an important but not fundamental right will be subject to intermediate or heightened scrutiny. Finally, if none of these rights or classes are involved, the classification is subject to the least stringent standard of review and will be upheld if there is any rational basis for it. Id. at 557, 424 Pa.Super. at 820-21, quoting Smith v. Philadelphia, 512 Pa. at 138, 516 A.2d at 311; see also James v. SEPTA, supra, 505 Pa. 137, 477 A.2d 1302.

Although the type of classification at issue is crucial to our analysis, Father’s argument on this point is minimal. He maintains that

his status as a divorced father would allow him to come within the “suspect class” type of cases, therefore, requiring this Court to conduct a review based on strict scrutiny. In the alternative, [he] believes that an “important” interest has been affected and that a sensitive, if not suspect, classification has been made, thereby entitling him to have this matter reviewed under a “heightened standard of review.”

Brief for Appellant at 8. Father cites no case law to support this argument, nor does he identify the “important” interest involved or explain why divorced fathers constitute a suspect or sensitive class. Bearing in mind the presumption of constitutionality to be accorded Act 62, we decline to apply to the Act a strict or heightened level of scrutiny where no persuasive reason has been given us for doing so.

Accordingly, we consider whether Act 62 passes the rational basis test. In other words, is Act 62 “rationally related to a legitimate state purpose”? In re Estate of Long, 410 Pa.Super. 607, 611, 600 A.2d 619, 620 (1992), citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974). The United States Supreme Court has observed that

equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must -be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.... This standard of review is a paradigm of judicial restraint.

F.C.C. v. Beach Communications, Inc., — U.S. -, -, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (citations omitted; emphasis added).

Included in Act 62 is the following statement of purpose:

[T]he General Assembly finds that it has a rational and legitimate governmental interest in requiring some parental financial assistance for a higher education for children of parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation.

In the legislative debate on Act 62, Representative Ryan offered an explanation as to why a statute was necessary to further that interest:

I read an article in the paper not too long ago____ There were 80 petitions filed in Montgomery County in the first 2 months, to my recollection, the first 2 months after the Blue case came down in November, and these were cases where, for the most part, fathers were filing petitions so they would not have to pay the tuitions of their children to go to college the following semester, and that is just wrong. It is the wrong thing to do.

We have tuitions coming due this summer, we have children making plans to go back to school this fall, and I think it is wrong for us not to address the issue now. I think it is wrong for us not to go back to the law the way it was for the 30, 40 years that preceded the Blue case....

Legislative Journal, House, June 24, 1993, p. 1689.

The trial court, citing the persuasive reasoning of the Supreme Court of New Hampshire in LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993), analyzed the matter as follows:

I agree with the LeClair court that college educátion for capable students is a worthy social goal. I also conclude that the Legislature could rationally conclude that children of divorced, separated or unmarried parents are generally, but not inevitably, in greater need for protection in their pursuit of college education than are children of intact marriages. Economic retaliation, bitterness, even hatred, must be acknowledged as frequently at work in such situations. Intact families on the other hand most often, but not inevitably, will struggle and sacrifice to provide their children with higher education____ Act 62 also reflects the historic tradition in our law that courts will not interfere with the economic decisions of intact families. See Commonwealth v. George, 358 Pa. 118, 56 A.2d 228 (1948)[;] Shilling v. Shilling, 394 Pa.Super. 154, 575 A.2d 145 (1990). Divorce, separation or unmarried status, however, frequently results in the intervention of the courts with regard to economic issues, i.e., support, equitable distribution of marital property, et cetera, for the purpose of mitigating harm to the parties and serving the best interest and welfare of children. Given these realities and this long standing tradition of our law, it cannot be said that there is no rational basis for the Legislature’s determination, as reflected in Act 62, to regard children of divorced, separated or unmarried parents as worthy of special protection as against the “fall out” of divorce or separation.

Trial Court Opinion, 2/15/94, at 4-5.

Mindful of the United States Supreme Court’s instruction that our review of such a statute shall be a model of judicial restraint, we conclude that both the pertinent legislative history and the trial court’s analysis, quoted above, suggest a “reasonably conceivable state of facts” which can serve as a rational basis for treating intact and non-intact families differently with regard to the support of adult children seeking post-secondary education. In reaching this conclusion, we do not disagree with Father’s assertion that many divorced or separated parents put aside their personal animosities for the sake of their children, nor do we dispute Father’s claim that Act 62 does not instruct the trial court to duplicate as nearly as possible the decision that would have been made regarding the child’s post-secondary education if the family had remained intact. Nevertheless, a classification may be rational even though it “is not made with mathematical nicety or because in practice it results in some inequality.” Martin v. Com., Unemployment Compensation Board of Review, 502 Pa. 282, 291, 466 A.2d 107, 111 (1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 541 (1984), quoting Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161. Accordingly, we conclude that Act 62 “bears some rational relationship to a legitimate state end,” id., and therefore does not violate the state and federal guarantees of equal protection.

Order affirmed.

CIRILLO, J., files a dissenting opinion, which is joined by CAVANAUGH, J.

1 . "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts....” U.S. Const, art. I, § 10, cl. 1.

2 . "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const, art. 1, § 17.