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MICHAEL DEVERGILIUS v. MICHAEL DEVERGILIUS (07/13/84)

filed: July 13, 1984.

MICHAEL DEVERGILIUS, JR., KIMBERLY ANN DEVERGILIUS
v.
MICHAEL DEVERGILIUS, APPELLANT



No. 2949 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 603 of 1979.

COUNSEL

Peter J. Comerota, Scranton, for appellant.

Joseph A. O'Brien, Scranton, for appellees.

Cavanaugh, Wieand and Cirillo, JJ.

Author: Wieand

[ 329 Pa. Super. Page 435]

This is an appeal from an order requiring Michael DeVergilius, the appellant, to pay twenty ($20) dollars per week for the support of two children, Michael DeVergilius, Jr. and Kimberly Ann DeVergilius, while they attend college.*fn1 An independent review of the record persuades us that the entry of the order was an abuse of discretion. In the first place, appellant has not agreed that he would continue to support his children while they sought a college education. Secondly, appellant is not able to pay support for his college age children without undue hardship to himself and his new family. Finally, the appellee children are themselves beneficiaries of a substantial trust fund. The order, therefore, will be reversed and set aside.

Michael DeVergilius, age 20 at the time of hearing, and Kimberly DeVergilius, age 18, are the children of Michael DeVergilius and Frances Serafini. The parents are divorced. A separation agreement is ambiguous. Although it implies that the parties contemplated college educations for their children, it does not impose upon the appellant father an affirmative duty to pay therefor. The children, since the

[ 329 Pa. Super. Page 436]

    separation of their parents, have resided with their mother; they have not maintained contact with their father. They now attend Ithaca College.

Appellant has remarried and is now the father of a three and one-half year old daughter born of his second marriage. He is employed by PennDOT and takes home weekly a net salary of $313.67. He has no other income; he rents a home and is the sole support of his second family. His expenses for necessaries average $1,169.50 per month.

During the summer preceding the hearing, Michael, Jr. was employed by Empire Contracting Company and earned $3,600. Thereafter, he took employment as a legislative aide in his uncle's office at a biweekly salary of $225. He owns an interest in several pieces of land in the Borough of Taylor, Lackawanna County, and is the beneficiary of a trust created by his grandmother. He receives $2,300 per year in interest and $1,630 per year in dividends.

Kimberly earned wages of $492.45 from a summer job. She, too, is the owner of an interest in real estate with her brother and the beneficiary of a trust fund created by her grandmother. She received interest of $1,523.80 and dividends of $1,631.57 during the year preceding the hearing. She also receives a financial grant of $500 per semester to aid her in obtaining a higher education.

Frances Serafini, the mother of the two children, is employed as a school teacher and earns a net weekly amount of $263.82. She is the principal life beneficiary of the trust created by the terms of her mother's will. The trustee can invade principal for her benefit and upon her request. ...


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