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DAVID HUTCHINSON v. GEORGE HUTCHINSON (02/15/79)

decided: February 15, 1979.

DAVID HUTCHINSON
v.
GEORGE HUTCHINSON, DOROTHY HUTCHINSON. APPEAL OF GEORGE HUTCHINSON



No. 637 April Term, 1978, Appeal from the Order of the Court of Common Pleas, Family Division, of Allegheny County, Pennsylvania. No. D-99 of 1978

COUNSEL

Louis B. Loughren, Pittsburgh, for appellant.

Dorothy Hutchinson, in pro per.

David Hutchinson, in pro per.

Cercone, Wieand and Hoffman, JJ.

Author: Wieand

[ 263 Pa. Super. Page 300]

David Hutchinson is the 19-year-old son of George and Dorothy Hutchinson. He is presently in his second year at the University of Pittsburgh. His parents are separated but not divorced. David filed a complaint against his parents to obtain an order for his support while attending classes at the

[ 263 Pa. Super. Page 301]

University. The court below entered an order of $100 per month against both parents for the support of "their son David. Monies to be used for educational purposes, this order to be effective each year for school term only, Sept. 1st thru April. . . . Deft, George Hutchinson, to pay $75.00 of this order and Deft, Dorothy Hutchinson to pay $25.00 of this order. Mother also to provide shelter and food for David." George Hutchinson has appealed. We affirm.

This Court has consistently enunciated the rule, which the Supreme Court has approved, that in the absence of an agreement to educate, a father has no duty to aid in providing a college education for his child no matter how deserving, willing and able that child may be unless he has sufficient estate, earning capacity, or income to enable him to do so without undue hardship. Emrick v. Emrick, 445 Pa. 428, 284 A.2d 682 (1971); Commonwealth ex rel. Williams v. Williams, 242 Pa. Super. 550, 364 A.2d 410 (1976); Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa. Super. 182, 289 A.2d 742 (1972); 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); 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). The existence of undue hardship depends upon the circumstances of each case. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182 (1963). Where there is an agreement to educate a child, however, the same standard will not be applied. Emrick v. Emrick, supra; Commonwealth ex rel. Smith v. Smith, 217 Pa. Super. 1, 268 A.2d 161 (1970); Commonwealth ex rel. Grossman v. Grossman, 188 Pa. Super. 236, 146 A.2d 315 (1958); Commonwealth ex rel. Stomel v. Stomel, 180 Pa. Super. 573, 119 A.2d 597 (1956).

In the instant case, the hearing court found that appellant, without undue hardship, could assist his son to acquire a college education by contributing to his support during the school year. Appellant was employed by Homestead Electric and Machine Company and received wages of $11,670.37

[ 263 Pa. Super. Page 302]

    per year. He received additional annual income of $2,666.00 from attending drills as an active member of the U.S. Naval Reserve. He maintained a savings account with a balance of $3,200 and a checking account of $200. Pursuant to court order, appellant was paying $180 per month for the support of his wife and another child. He was also paying $194 per month on a mortgage constituting a lien on a home which, although jointly owned, was occupied by appellant alone. Appellant alleged additional items of ...


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