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FRANCIS LEDERER v. MARY LEDERER (09/25/81)

filed: September 25, 1981.

FRANCIS LEDERER,
v.
MARY LEDERER, APPELLANT



No. 2214 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Family Division, Philadelphia County, at No. 264427.

COUNSEL

Joseph J. Carlin, Philadelphia, for appellant.

Mary Jo Carr, Philadelphia, for appellee.

Cercone, President Judge, and Spaeth and Cavanaugh, JJ.

Author: Cercone

[ 291 Pa. Super. Page 23]

This appeal was taken by appellant, Mary Lederer, from the order of the court below in which the court relieved appellee, Francis Lederer, of the obligation to support the parties' eighteen-year-old daughter, Claire, who is presently enrolled in college. Instead, the court directed that the father should contribute to Claire's tuition. Because we find that the lower court did not correctly apply the relevant principle of law, we vacate the court's order and remand for further hearings.

Appellant and appellee, now divorced, are the parents of three children -- Francis M., 27, Geralyn, 23, and Claire, 18.

[ 291 Pa. Super. Page 24]

(The father has since remarried and has two other children, ages eight and six.) All three of the parties' children reside with the mother. Although in the past the father paid support towards the upkeep of Francis and Geralyn, the support order was at previous times modified to direct the father to pay sixty dollars a week for the support of Claire. On June 27, 1980, Claire turned eighteen and the father petitioned the court to ask that Claire be removed from the order of support. A hearing was held on this matter and at this hearing the father expressed his willingness to pay money towards Claire's tuition. The father testified that he had an income of $32,500.00 -- $21,500.00 from salary and $11,000.00 from a pension.

The mother also took the stand at this hearing and testified that Claire has arranged most of the financing for her tuition through grants and loans, with the exception of two hundred dollars, which the mother paid towards the first semester. In other testimony, the mother indicated that the parties' oldest child, Francis, has a health problem and works only sporadically. The second child, Geralyn, earns about $175.00 per week in salary, of which she pays $15.00 per week to her mother for room and board. The court made no comment regarding Francis but several times the court expressed the view that Geralyn was paying far too little for board. The mother testified that she herself has a gross income of $18,500.00.

Based upon this evidence, the court ordered that the father's obligation to make payments towards Claire's support be terminated but the court directed the father to pay $600.00 per year towards Claire's tuition, this amount to rise "with costs as they rise." In its opinion, the court said that Claire's personal maintenance is her own responsibility.

[ 291 Pa. Super. Page 25]

It is settled law in Pennsylvania that in 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 or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself." Emrick v. Page 25} Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchison v. Hutchison, 263 Pa. Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child's college education, even in the absence of an agreement to support the child ...


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