Diehl on Behalf of Beaver v. Beaver

663 A.2d 232, 444 Pa. Super. 91
CourtSuperior Court of Pennsylvania
DecidedAugust 10, 1995
StatusPublished
Cited by7 cases

This text of 663 A.2d 232 (Diehl on Behalf of Beaver v. Beaver) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diehl on Behalf of Beaver v. Beaver, 663 A.2d 232, 444 Pa. Super. 91 (Pa. Ct. App. 1995).

Opinions

[94]*94WIEAND, Judge:

This is an appeal from an order directing the appellant, Wayne Beaver, to contribute to the cost of providing a college education for his son. Because the trial court committed error in determining the amount of the order, we reverse and remand.

Wayne Beaver and Mary Diehl, formerly husband and wife, are the parents of two children: Michael, born on April 17, 1975, and Timothy, born on October 3, 1977. Wayne paid child support pursuant to court order until Michael was graduated from high school. The parties then agreed that Wayne was no longer required to pay support for Michael, and the order was modified to require payment of $313.00 per month for Timothy’s support. In the fall of 1993, however, Michael began attending Pennsylvania State University. On August 6, 1993, therefore, Mary filed a complaint seeking to compel support payments from Wayne for Michael’s college expenses. Following a hearing, a court-appointed master issued a recommended order for support, and both parties filed exceptions. On May 19,1994, the trial court ordered Wayne to pay $245.00 per month toward the cost of Michael’s postsecondary education, as well as $50.00 per month on account of accumulated arrearages. Wayne appealed.

In matters involving support, a reviewing court will not disturb an order of the trial court unless there has been an abuse of discretion. Ball v. Minnick, 538 Pa. 441, 448, 648 A.2d 1192, 1196 (1994); Oeler by Gross v. Oeler, 527 Pa. 532, 537, 594 A.2d 649, 651 (1991); Connor v. Connor, 434 Pa.Super. 288, 290, 642 A.2d 1136, 1137 (1994). An abuse of discretion exists if the trial court has overridden or misapplied the law, or if there is insufficient evidence to sustain the order. See: Drawbaugh v. Drawbaugh, 436 Pa.Super. 57, 59, 647 A.2d 240, 241 (1994); Kelly v. Kelly, 430 Pa.Super. 31, 34, 633 A.2d 218, 219 (1993); Fitzpatrick v. Fitzpatrick, 412 Pa.Super. 382, 386, 603 A.2d 633, 635 (1992).

Following his divorce, Wayne remarried. His second wife is an employee of Bloomsburg University. Evidence was [95]*95introduced that dependent stepchildren of employees of Bloomsburg University are entitled to a waiver of tuition if they matriculate at that school.1 Despite testimony to the contrary, the court found that Michael could not qualify under this policy because he did not permanently “reside” with his father and stepmother and because he had not been claimed as a dependent on their income tax returns. In view of the written statement of this policy, we are reluctant to fault the trial court for rejecting the oral explanation for the manner in which its policy is applied by Bloomsburg University. Resolution of factual issues is for the trial court, and a reviewing court will not disturb the trial court’s findings if they are supported by competent evidence. See: Perlberger v. Perlberger, 426 Pa.Super. 245, 263, 626 A.2d 1186, 1196 (1993); Campbell v. Campbell, 357 Pa.Super. 483, 490, 516 A.2d 363, 366 (1986); In re Cummings Estate, 330 Pa.Super. 255, 263, 479 A.2d 537, 541 (1984). It is not enough that we, if sitting as a trial court, may have made a different finding.

A court may not order support for postsecondary educational costs where “[ujndue financial hardship would result to the parent.” 23 Pa.C.S. § 4327(f)(1). In the instant case, Wayne had a monthly income of $2350.00. He was required to make monthly support payments in the amount of $313.00 for the parties’ younger child and $245.00 per month for Michael’s college education. Wayne contends on appeal that because income and expense statements which he submitted to the trial court demonstrated that he had monthly expenses in the amount of $2500.00, the court’s order imposed an undue hardship on him.2 This is a close question, and the trial court did not make a specific finding as to the amount, if any, which appellant could pay without undue hardship. However, the trial court determined, as appropriate under the statute, that Michael’s educational costs were $9112.00 per year. The court then determined that Wayne’s equitable share of this amount would have been $5467.00 per year, or [96]*96$455.00 per month. Taking into account Wayne’s other expenses, the court reduced this to $245.00 per month and concluded that this was a “reasonable” amount. While not specifically invoking the words “undue hardship”, therefore, it is nevertheless clear that the court was concerned with Wayne’s ability to fulfill all his financial obligations. In light of Wayne’s monthly income of $2350.00, we are unable to hold that the trial court’s determination was an abuse of discretion. See: Byrnes v. Caldwell, 439 Pa.Super. 574, 578-81, 654 A.2d 1125, 1128 (1995).

Wayne also contends that Mary’s earning capacity was greater than the monthly income attributed to her by the trial court. In determining one’s ability to provide support, the focus is generally on one’s earning capacity rather than on the person’s actual earnings. Kelly v. Kelly, supra at 34, 633 A.2d at 219; Singleton v. Waties, 420 Pa.Super. 184, 190, 616 A.2d 644, 647 (1992); Monsky v. Sacks, 403 Pa.Super. 40, 44, 588 A.2d 19, 21 (1991). A person’s earning capacity “is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Myers v. Myers, 405 Pa.Super. 290, 297, 592 A.2d 339, 343 (1991); Goodman v. Goodman, 375 Pa.Super. 504, 508, 544 A,2d 1033, 1035 (1988). Here, Mary was employed by Big Brothers and Big Sisters of Columbia County at a salary of approximately $16,000.00 per year. From 1980 to 1985, Mary had been employed as a teacher and had earned a substantially greater income. She testified, however, that recent attempts to find similar positions had been unsuccessful. The trial court accepted her explanation and attributed to her a monthly income of $1300.00. In light of the factual support for the trial court’s finding, this was not an abuse of discretion. See: Klahold v. Kroh, 437 Pa.Super. 150, 649 A.2d 701 (1994) (earning capacity should generally not be based on greater prior earnings where there is no evidence of a deliberate reduction in income to avoid a support obligation).

[97]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Linde, B. v. Linde, S.
2019 Pa. Super. 305 (Superior Court of Pennsylvania, 2019)
M.R.A. v. A.S.
Superior Court of Pennsylvania, 2015
Doran v. Doran
820 A.2d 1279 (Superior Court of Pennsylvania, 2003)
Diament v. Diament
816 A.2d 256 (Superior Court of Pennsylvania, 2003)
Mooney v. Doutt
766 A.2d 1271 (Superior Court of Pennsylvania, 2001)
Diehl on Behalf of Beaver v. Beaver
663 A.2d 232 (Superior Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
663 A.2d 232, 444 Pa. Super. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diehl-on-behalf-of-beaver-v-beaver-pasuperct-1995.