George P. O'Connell, Philadelphia, for appellant.
Joseph C. Spaulding, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Jacobs and Price, JJ., note their dissents.
[ 242 Pa. Super. Page 552]
This is an appeal from the denial of a petition to terminate a support order for appellant's 18 year old daughter, Claudette. At the time of the hearing below, Claudette had begun her sophomore year at Clarion State College.*fn1 The support order required appellant to pay $15.00 per week toward her expenses. Appellant, who has remarried, argued that his weekly expenses in maintaining his present wife and their young child made the continued support of Claudette an economic hardship. The hearing judge found that the evidence justified "some relief" but concluded that "the father has sufficient income to minimally assist in the support of Claudette." Slip opinion at p. 4. Accordingly he reduced the support order to $10.00.
The controlling rule is well established:
[A] father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able the child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself. E. g., Colantoni v. Colantoni, 220 Pa. Super. 46, 281 A.2d 622  (1971); Commonwealth ex rel. Grossi v. Grossi, 218 Pa. Super. 64, 272 A.2d 239 (1970); Commonwealth ex rel. Yannacone v. Yannacone, 214 Pa. Super. 244, 251 A.2d 694 (1969).
Emrick v. Emrick, 445 Pa. 428, 431, 284 A.2d 682, 683 (1971). Although the hearing judge in his opinion recognized this rule as controlling, the record makes
[ 242 Pa. Super. Page 553]
it clear that in reaching his decision he nevertheless considered factors outside the scope of the rule.*fn2
Appellant testified that his net weekly income after support payments were deducted was $125.44, and that his weekly expenses were $141.46, leaving him with a weekly deficit of $16.02. Neither the accuracy or the reasonableness of these figures is questioned. On two occasions during the hearing the judge noted that appellant's expenses were due to his second marriage, which was "an additional obligation that you took on after you had already incurred one." The issue, however, is not which obligation was incurred first but whether the father can without "undue hardship" contribute to his child's college education. Commonwealth ex rel. Brown v. Weidner, 208 Pa. Super. 114, 220 A.2d 382 (1966); Commonwealth ex rel. Rice v. Rice, 206 Pa. Super. 393, 213 A.2d 179 (1965). This inquiry is limited to a review of the father's economic status. Commonwealth ex rel. Schearer v. Schearer, 208 Pa. Super. 196, 222 A.2d 620 (1966). Once it is established that a support order is causing "undue hardship," the hearing judge does not have the discretion to decide that the child's desire and ability to attend college outweigh the personal sacrifice that the order if continued would impose. Commonwealth ex rel. Yannacone v. Yannacone, supra.
The existence of undue hardship will depend upon the circumstances. In Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182 (1963), this court said:
We are not suggesting that a father should be required to support a child in college only ...