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COMMONWEALTH EX REL. SCHEARER v. SCHEARER (09/15/66)

decided: September 15, 1966.

COMMONWEALTH EX REL. SCHEARER
v.
SCHEARER, APPELLANT



Appeal from order of Court of Quarter Sessions of Delaware County, Sept. T., 1952, No. 184, in case of Commonwealth ex rel. Geraldine Schearer v. John P. Schearer.

COUNSEL

Edward A. Savastio, with him James A. Lynch, for appellant.

M. Mark Mendel, with him Harry Dunn, and Mendel, Killeen and Dubyn, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J. Jacobs, J., dissents. Hoffman, J., dissents for the reasons set forth in his dissenting opinion in Commonwealth ex rel. Brown v. Weidner, supra.

Author: Ervin

[ 208 Pa. Super. Page 197]

This is an appeal from an order entered April 1, 1966 by the court below increasing a support order from $25.00 a week to $50.00 a week for Pamela Schearer, a daughter of the appellant.

Pamela was eighteen years of age on March 29, 1966 and was to graduate from Upper Darby Senior High School in June of 1966. She has been accepted at the Laboratory Institute of Fashion Merchandising in New York, the tuition of which is $1,395.00 per year. Pamela desires to reside, while attending the Institute, at the Barbizon Plaza Hotel, 63rd Street and Lexington Avenue, New York City, New York, the cost of which will be $1,875.00 per year, which sum does not include lunch nor any meals on the weekend. She will also be required to spend additional funds for books, transportation, daily lunch and all meals on the weekend.

[ 208 Pa. Super. Page 198]

Pamela has been in the top tenth of her high school class and is able and willing to successfully pursue her course of studies at the institute.

No agreement by the father to support the child in college has been shown.

Appellant, John P. Schearer, and Geraldine Schearer were married on June 12, 1947. Pamela was born of that marriage on March 29, 1948. The Schearers were divorced in 1954.

We repeat what we recently said in the case of Com. ex rel. Brown v. Weidner, 208 Pa. Superior Ct. 114, 220 A.2d 382: "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."

We must study all the facts and surrounding circumstances in order to determine whether the father would be subjected to undue hardship if compelled to pay this order. The only discussion as to the appellant's income in the opinion of the court below is in the following language: "John P. Schearer testified that he is in the florist business and that his income for the year 1964 was about $8,000.00. He further testified that his income ...


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