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COMMONWEALTH EX REL. LARSEN v. LARSEN (09/15/67)

decided: September 15, 1967.

COMMONWEALTH EX REL. LARSEN, APPELLANT,
v.
LARSEN



Appeal from order of Court of Quarter Sessions of Clearfield County, May T., 1957, No. 58, in case of Commonwealth ex rel. James Erling Larsen, a minor, by Mary M. Larsen, v. E. Noer Larsen.

COUNSEL

Ervin S. Fennell, Jr., with him Maine and Fennell, for appellant.

R. Edward Ferraro, for appellee.

Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Spaulding, J.

Author: Spaulding

[ 211 Pa. Super. Page 32]

This appeal challenges the adequacy of an order of $1275.00 per year, entered against defendant by the court below, for the support of a 19 year old son in college.

James Larsen became 18 years of age on December 8, 1965. In September, 1966 he enrolled as a full time premedical student at Washington and Jefferson College in Washington, Pennsylvania, where his tuition and other expenses total about $3600.00 per year. The defendant, James' divorced father, was at that time under a court order of $2600.00 per year for his son's support. At a hearing held on October 15, 1966 James, by his mother as relatrix, sought to have this order increased to cover his college expenses, while defendant sought to have the order reduced. The defendant, who had never agreed to provide James with an education at any college, particularly took issue with the need for his son to attend such an expensive institution, and testified that according to his personal investigations the son could obtain an adequate, if not superior, education at Pennsylvania State University for a cost of only $1275.00 per year. Based on this testimony, the court below held that, under the circumstances, the defendant should provide "only such reasonable sum as would allow for a proper education [for] said son in a wholly acceptable university, such as Pennsylvania State University," and set its order accordingly at the rate of $106.25 per month. Appellant contends that the trial court abused its discretion in the amount fixed for support for college and in basing this amount

[ 211 Pa. Super. Page 33]

    on hearsay testimony without regard to actual needs of the son. We do not agree.

"The law, apart from statute has come to recognize that paternal duty involves, in addition to provision for mere physical needs, such instruction and education as may be necessary to fit the child reasonably to support itself [sic] and to be an element of strength, rather than one of weakness, in the social fabric of the state." Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Superior Ct. 640, 643, 190 A.2d 182 (1963).

In Ulmer we stated that, under certain circumstances, a father may be required to support a child attending college, whether or not the father has agreed to do so. For such an order to be justified, the child should be able and willing to pursue successfully his course of studies, and, in addition, "the father should have sufficent estate, earning capacity or income to enable him to pay the order without undue hardship." Id., at 644. In the instant case, the son's willingness and ability are not in issue, nor have we any doubt that defendant can pay some portion of the cost of the son's education without undue hardship. The question for our consideration is the extent to which a father is obliged, under present circumstances, to support a child attending an expensive private college when an adequate but less expensive education is available elsewhere.

We are reluctant to formulate a rule which would, in all cases, prevent a child from attending the college of his choice simply because it is more expensive than the state-supported university. On the other hand, we do not believe that the child should have absolute discretion in selecting a college, thereby unilaterally increasing the father's support obligation. The determination of whether such an additional burden should be imposed on the father is a ...


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