Appeal from order of Superior Court, April T., 1970, No. 501, affirming order of Court of Common Pleas, Family Division, of Allegheny County, No. 785 of 1970, in case of Florence M. Emrick v. Edwin V. Emrick.
Robert L. Campbell, with him Fred Chalmers Houston, and Houston, Houston & Donnelly, for appellant.
James L. Bowman, for appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen dissents and would dismiss the appeal as improvidently granted. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.
Appellant, Florence M. Emrick (mother), and appellee, Edwin V. Emrick (father), were married in 1946 and five children were born of that marriage. Unfortunately, difficulties arose between the parties and the marriage was eventually terminated by a Nevada divorce decree in 1960. An agreement between the parties, incorporated into the divorce decree, pertinently provided:
"5. [The father] is hereby ordered to pay [the mother] for the support and maintenance of the said minor children, the sum of Seventy ($70.00) Dollars per month, per child, the first of which monthly payments shall be made on January 1, 1961, and to continue with regard to each child until he or she reaches the age of 21 years, married, [sic] dies, or is proved by [the father] to be self-supporting.
"8. [The father] is hereby ordered to provide a four-year college education for each of said children, if commensurate with his ability to provide the same, but he shall, in his sole discretion, have the right to designate the college which each shall so attend at his expense."
Pursuant to this decree and agreement, the father paid $350.00 per month, without default, until two of these children reached twenty-one. Although he is presently paying $210.00 per month as support for the three minor children, the father has refused to pay the educational expenses of two children currently enrolled in different colleges.*fn*
The mother sought to enforce this agreement and a hearing was held. While the Allegheny County Court of Common Pleas, Family Division, ordered the continued payment of $210.00 per month, that court dismissed the mother's claim for educational expenses. On appeal, the Superior Court affirmed per curiam over the dissenting opinion of two judges. Emrick v. Emrick, 218 Pa. Superior Ct. 178, 275 A.2d 369 (1971). We granted allocatur.
Evidence presented at the hearing revealed that the father had a net income of $11,325.00 in 1969 and owned his home free and clear of any mortgage obligation. Despite the fact that he has had no children by his second marriage, the father's counsel stated that, "[the father] has not been able to accumulate any savings [or] put away anything for his old age or ...