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COMMONWEALTH EX REL. ULMER v. SOMMERVILLE (04/18/63)

April 18, 1963

COMMONWEALTH EX REL. ULMER
v.
SOMMERVILLE, APPELLANT.



Appeal, No. 27, Oct. T., 1963, from order of Court of Quarter Sessions of Bucks County, Sept. T., 1959, No. 8, in case of Commonwealth ex rel. Elaine Ulmer v. John Sommerville. Order dismissing defendant's petition reversed, support order vacated as to one child and amended to provide only for support of other child.

COUNSEL

Irwin S. Rubin, with him Gerald Hamburg, for appellant.

C. William Freed, Jr., with him Freed and freed, for appellee.

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

Author: Woodside

[ 200 Pa. Super. Page 641]

OPINION BY WOODSIDE, 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.

The parents of Joyce and Molly agreed to the amount of an order for their support which was entered on October 16, 1959. It provided that the defendant should pay to the relatrix $40 per week for the support of the two daughters. The parents are divorced. Since the entry of the order the mother has remarried, but the father remains single. The daughters reside with their mother.

Joyce, the older daughter, was 18 years old July 26, 1962. She was graduated from high school in June, and in September she entered the University of Bridgeport in Connecticut seeking a bachelor of science degree in nursing. She is normal physically and mentally. The father entered into no agreement expressed or implied with the mother, the daughters or any other person to send his daughters to college or to make any

[ 200 Pa. Super. Page 642]

    contributions toward their education beyond that of high school.*fn1

After Joyce was graduated from high school, the defendant petitioned the court to vacate the order of $20 per week entered against him for her support. The mother then petitioned to increase the order for the support of both daughters. The father's income had increased, but not materially, since the order was entered in 1959. The court dismissed both petitions.*fn2 The relatrix has not appealed from the order dismissing her petition to increase the order, but the defendant has appealed from the court's refusal to vacate the order for the support of the daughter now attending college.

The order of support for the daughter attending college must be vacated. There was no agreement by the defendant to educate his daughter. Therefore, an order cannot be justified under the principle established in the cases cited in footnote No. 1. See also Commonwealth ex rel. Gillen v. Gillen, 102 Pa. Superior Ct. 136, 156 A. 572 ...


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