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COMMONWEALTH EX REL. HOWELL v. HOWELL (06/13/62)

June 13, 1962

COMMONWEALTH EX REL. HOWELL
v.
HOWELL, APPELLANT.



Appeal, No. 408, Oct. T., 1961, from order of County Court of Philadelphia, Sept. T., 1958, No. 137,468, in case of Commonwealth ex rel. Pearl Howell v. Melvin Howell. Order affirmed.

COUNSEL

Robert N. C. Nix, Jr., for appellant.

Cecil B. Moore, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 198 Pa. Super. Page 397]

OPINION BY WRIGHT, J.

This is an appeal by Melvin Howell from an order of the County Court of Philadelphia, entered September 21, 1961, requiring him to pay college tuition for his eighteen year old daughter from the proceeds of an insurance policy maintained for that purpose. The case was first argued in December 1961 before six members of this court, who divided evenly. Reargument was heard in March 1962 before the entire court. The narrow issue before us is whether, under the circumstances disclosed by this record, the court below abused its discretion in making the order under consideration.

Appellant is a graduate of the School of Pharmacy of Temple University, and operates a drug store at 18th and Carpenter Streets in the City of Philadelphia. On June 10, 1938, he married Pearl J. Howell, who holds a B. S. degree in secretarial education from Hampton Institute. Their daughter, Pearl Olivia Howell, was born on September 10, 1943. A child's educational endowment policy was issued to appellant by the North Carolina Mutual Life Insurance Company on June 6, 1952, to mature in ten years in principal sum of $1,500.00. Appellant concedes that this policy was designed "to send the child to college". Upon her graduation from Girls High School in June 1961, the daughter expressed a desire to continue her education at Temple Community College. The policy then had a value in excess of $1,000.00, which was available to appellant for this purpose.

It is appellant's contention on this appeal that ownership of this policy, even though coupled with the intention at the time of issuance to use the proceeds therefrom for the daughter's college education, does not "amount to a valid and binding agreement or voluntary offer such as can be enforced by the Court". Appellant takes the position that he has "the sole and exclusive rights under this policy".

[ 198 Pa. Super. Page 398]

From a procedural standpoint, the proceeding had its inception in a petition for support filed by appellant's wife. On January 29, 1960, by agreement of the parties, a temporary order was entered in the sum of $40.00 per week for the support of the wife and daughter. Appellant fell behind in his payments and an attachment was issued. The court below thereupon entered into an investigation for the purpose of fixing a permanent order. Seven hearings ensued, and there is a voluminous record, much of which does not relate to the precise issue before us. As the time approached for the daughter to enter college, the court below scheduled a hearing for September 21, 1961, limited solely to the matter of tuition. At this hearing, counsel for appellant contended "that the father has not the duty to support and maintain a child during the period of college", citing Commonwealth v. Wingert, 173 Pa. Superior Ct. 613, 98 A.2d 203. The hearing judge took the position that the daughter's day to day support was not involved, but ordered appellant to "get the proceeds of that policy or pledge the policy for enough to pay the tuition".

In the Wingert case, we stated that "there are no appellate cases in Pennsylvania wherein the facts have been held to justify an order of support for a child attending college". This statement was repeated with approval in Commonwealth ex rel. Stomel v. Stomel, 180 Pa. Superior Ct. 573, 119 A.2d 597. However, in the Stomel case, we affirmed an order of support for a son in college, including tuition, because of an agreement by the father to that effect. Similarly, in Commonwealth ex rel. Grossman v. Grossman, 188 Pa. Superior Ct. 236, 146 A.2d 315, we held that an agreement entered into by the father contemplated a college ...


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