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COMMONWEALTH EX REL. BROWN v. WEIDNER (06/17/66)

decided: June 17, 1966.

COMMONWEALTH EX REL. BROWN
v.
WEIDNER, APPELLANT



Appeal from order of Court of Quarter Sessions of the Peace of Lehigh County, Sept. T., 1962, No. 114-A, in case of Commonwealth ex rel. Madeleine Brown v. Spurgeon L. Weidner.

COUNSEL

Ray R. Brennen, for appellant.

Bernard B. Naef, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J. Dissenting Opinion by Jacobs, J. Wright, J., joins in this dissenting opinion. Dissenting Opinion by Hoffman, J.

Author: Ervin

[ 208 Pa. Super. Page 114]

This is an appeal from the refusal of the court below to vacate an order against the defendant for the

[ 208 Pa. Super. Page 115]

    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 Lehigh 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

[ 208 Pa. Super. Page 116]

    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 ...


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