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COMMONWEALTH v. WINGERT (07/14/53)

July 14, 1953

COMMONWEALTH
v.
WINGERT



COUNSEL

Dan P. Arnold and Chaplin & Arnold, Clearfield, for appellant.

Luther C. Braham and Galbreath, Braham & Gregg, Butler, and Frank A. Whitsett and Smith, Maine, Whitsett & Lee, Clearfield, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Wright, JJ.

Author: Wright

[ 173 Pa. Super. Page 614]

WRIGHT, Judge.

Appellant is defendant's former wife. This appeal is from an order of the court below releasing defendant from further support of their daughter, Mary Kathleen Wingert. While it is the function of this court to review the proceedings, it will not interfere with the order of the lower court unless there is a clear abuse of discretion: Com. ex rel. Koehler v. Koehler, 170 Pa. Super. 117, 84 A.2d 253; Com. ex rel. Mass. v. Mass., 170 Pa. Super. 545, 87 A.2d 793; Com. v. Henderson, 170 Pa. Super. 559, 87 A.2d 797.

Following a separation in 1927, a court order was entered against defendant for the support of his minor children. Appellant and defendant were subsequently divorced, and appellant has remarried. The case was listed for rehearing in 1951, at which time all of the children except Mary Kathleen were of age and self-supporting. An agreement was then reached between appellant and defendant whereby the sum of $2000 was paid for support of Mary Kathleen for the period from October 18, 1951, to October 17, 1952. In August 1952, a hearing was held on a petition asking for an increase in the allowance for Mary Kathleen, who had reached the age of seventeen years. She had graduated from a private high school and had applied for admission to the College of New Rochelle. It appears that she had won a scholarship in chemistry and had shown exceptional musical ability. She stood high in her class upon graduation. The testimony of the mother was to

[ 173 Pa. Super. Page 615]

    the effect that it would cost approximately $3600 for tuition and expenses at the college and, in addition, that there should be an allowance of $15 a week for twelve weeks vacation. It was also developed that the school gives training, not in any particular field, but in the social cultures generally, including riding, golfing and similar lessons.

There was testimony as to the financial standing of the Wingert Contracting Company, and other capital assets owned by defendant; also as to his standard of living, and educational advantages and gifts given to the other children. Evidence for the defendant showed that he had an annual income of $22,500 which, after taxes, was approximately $15,000 net. Defendant also attempted to establish that, because of his expenses, he was going in debt approximately $500 a month. It does not appear, however, that defendant is seriously contending that he is financially unable to send his daughter to college. At the time of the agreement in 1951, he stated that he would send Kathleen to college. Under no circumstances does he want any money to go to his wife or to her present husband.

Appellant's contention is that a father of the financial means of defendant cannot escape the responsibility of providing for the support of a seventeen-year-old daughter, who is a student of superior abilities, merely because she has completed high school and is attending college. She argues that 'in the competitive society existing today, a college education for children of marked abilities is not a luxury, and where a parent has the financial means to provide the same, an arbitrary refusal so to do is unwarranted, harsh and improper'. On the other hand, defendant takes the position that he is under no legal obligation to provide a college education for his children. It should be noted that there is no evidence that the child is not physically or mentally

[ 173 Pa. Super. Page 616]

    capable of self-support. The lower court made special provision to hear further evidence in this ...


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