Commonwealth Ex Rel. Brown v. Weidner

220 A.2d 382, 208 Pa. Super. 114, 1966 Pa. Super. LEXIS 813

• Court: Superior Court of Pennsylvania
• Decided: June 17, 1966
• Docket: Appeal, 78
• Status: Published

Opinions

Opinion by

Ervin, P. J.,

This is an appeal from the refusal of the court below to vacate an order against the defendant for the support of an 18-year old daughter who is now attending college. It presents a problem which has been coming frequently before us in recent years. This Court has never affirmed an order for the support of a child in college except where an agreement or an intention by the father to provide such support has been shown. We have strongly indicated that such an order should be made to help a child receive an education beyond high school when the child is able and willing to successfully pursue his course of studies and his father has sufficient estate, earning capacity or income to enable him to pay the order without undue hardship: Com. ex rel. Ulmer v. Sommerville, 200 Pa. Superior Ct. 640, 642, 644, 190 A. 2d 182; Com. v. Camp, 201 Pa. Superior Ct. 484, 487, 193 A. 2d 685; Com. ex rel. Decker v. Decker, 204 Pa. Superior Ct. 156, 160, 203 A. 2d 343.

The daughter in the present case is actually attending her first year in college and beyond any question has the capacity to acquire a college education. The only question for our determination is whether the father can be required to contribute toward her college education without undue hardship. This necessitates a study of all the facts and surrounding circumstances for an answer to the problem.

On April 9, 1963 Judge Kenneth H. Koch (now President Judge of the Court of Common Pleas of Le-high County) filed an opinion in a case involving this same father when support was sought for his son Gary, who was then 19, attending Penn State University. Judge Koch stated: “An analysis of the testimony reveals also that the financial circumstances of the defendant does not warrant an order for the payment of college expenses. It appears that his net yearly earnings from a beverage distributing business are approximately $5000. His assistance in the support of an aged mother is another factor which persuades us that he is not of sufficient ability to warrant the imposition, of an order to provide for Gary.” Com. v. Weidner, 30 Lehigh L. J. 184, 187.

The appellant and his first wife were married in September of 1942 and divorced in 1954. Three children were born of this marriage, Gary, age 22, Karen, age 20, and Diane, age 18. The appellant voluntarily supported Karen until she graduated from high school and became employed and no demand was made for any further support. Thereafter he continued to support Diane through her graduation from high school, until her 18th birthday. He then presented a petition for a rule requesting the court below to suspend the order which required him to pay $25.00 per week for the support of the daughter Diane.

Judge Donald E. Wieand, of the court below, by order dated November 5, 1965, denied the appellant’s petition to suspend the order but reduced it to $12.00 per week and further continued the order to terminate “when the daughter, Diane, should become disenrolled by graduation or for other reasons from Pennsylvania State University.” The appellant then filed the present appeal from that order.

An examination of the opinion of Judge Koch filed April 9, 1963 in the support proceeding for the son Gary, shows that the net yearly earnings of the appellant from a beverage distributing business were approximately $5,000 and that the appellant was assisting in the support of his aged mother at that time. In the present case the net yearly earnings of the appellant from the beverage distributing business are approximately $7,000. He and his present wife continue to operate the beverage distributing business as partners, both working full time. The appellant is still regularly paying $100 a month toward the support of his 85-year old mother, with the further agreement to pay half the cost if the mother must go to a rest home. There was medical testimony to the effect that the appellant’s health has deteriorated in the past year in that he has contracted pulmonary emphysema, which is a chronic condition for which there is no known cure and which will probably not improve. This condition of the appellant makes it necessary for his extra man to work twice as many hours as he used to work and it became necessary for the appellant to hire extra help.

The appellant testified that he has no real property, that he owns no stock or bonds, that his only insurance policy has been assigned for a loan in order to exercise the option to buy the business property and that he owes $7,000 to the bank and $3,284.70 to Penn-Securities, that he has a nominal savings account and that he lives with his present wife in an apartment and drives the same car he did in 1962.

The appellant, when asked whether he would like to see his daughter go to college, said: “I would like, to if I was able but I think I have done my duty in this case. I did not break up this family. The daughter can get a nice job at $85.00 a week and I am going to be sixty years old. It’s about time I get somewhere in my life myself. I have done my duty with these three children if any man has done it. I did not break up this home. It was broken up twice by her and him.”

While we are in sympathy with the idea that a parent should be compelled to contribute to the college education of a child who has the ability to acquire an education, we do not believe that the facts and circumstances of the present case are such as to compel this father to do so without undue hardship to himself. ■

Order reversed.