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submitted: January 17, 1986.


Appeal from the Order of the Court of Common Pleas, Chester County, Civil Division, at No. 538 No. 1969.


Madeline H. Lamb, West Chester, for appellant.

John J. Teti, Jr., Thorndale, for appellee.

Brosky, Johnson and Lipez, JJ.

Author: Brosky

[ 355 Pa. Super. Page 320]

This appeal is from the order modifying a previous support order and requiring appellant to pay $15 per week for the support of his daughter.

Appellant contends that: (1) the original support order should have been vacated as to appellant's daughter when she became 18 years old because of her failure to comply with Pa.R.C.P. 1910.3 (1) and (4); (2) he was deprived of his right to due process by not being afforded a hearing on whether support for his daughter should have been vacated when she reached the age of 18, (3) the court below did not apply the correct method of determining child support; (4) there was not sufficient evidence on the record to support the finding of the court below that the payment of child support would not cause an undue hardship to appellant; (5) there was not sufficient evidence on the record to support the findings of the court below as to the net incomes of the parties; (6) the court below abused its discretion in failing

[ 355 Pa. Super. Page 321]

    to modify the original support order as to appellant's daughter.

We agree with appellant's third contention and, for the reasons that follow, vacate the order of the court below and remand this case for a recalculation of appellant's support obligation.

Appellant and appellee were divorced in December, 1970. On November 1, 1971, an order was entered which provided that appellant pay 30 dollars per week for the support of his two minor children, Debra and Bryan.

Debra became 18 years old in March, 1982. In June of 1982, appellant spoke by telephone with the Domestic Relations Office of Chester County, which, after contacting appellee, informed appellant that he had to continue to pay support for the benefit of Debra because she was still in college.

Appellant continued to make his support payments until the Fall of 1984 when his second wife, whom he had married in December, 1970, and with whom he had had two children, became ill with cancer. At that time, he fell behind in his support payments and consulted counsel.

Counsel, in September, 1984, filed a petition to terminate or modify and to remit arrearages. A hearing was held before a hearing officer on February 26, 1985. At the hearing, appellee presented a petition to modify support which included a request that Debra be allowed to intervene in the action to enforce her right to support.

At the conclusion of the hearing, the hearing officer recommended that appellee's petition be dismissed; that the January 24, 1972 support order be vacated as of August 1, 1984, as to appellant's son, Bryan, who had become 18 in July, 1984 and was living at home and working; that the order be otherwise modified to 15 dollars per week for Debra retroactive to August 1, 1984; and that any arrearages that would be created by these recommendations be remitted.

[ 355 Pa. Super. Page 322]

Appellant timely filed exceptions to the hearing officer's recommended order. Appellee filed no exceptions to the recommendations. On August 25, 1985, the court below dismissed appellant's exceptions. This appeal timely followed.

Appellant first contends that no order continuing support should have been entered because neither appellee nor Debra brought an action to continue support when Debra became 18 in 1982 and because appellee did not comply with Pa.R.C.P. 1910.3(4)*fn1 when, in response to appellant's 1984 petition, she filed her petition in which she sought to have support continued for Debra. Implicit in appellant's argument is the point that the January 24, 1972 order of support was no longer effective as to Debra after she became 18. We must disagree with appellant.

We note preliminarily that:

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. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchinson v. Hutchinson, 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 past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa. Super. 314, 413 A.2d 422 (1979).

[ 355 Pa. Super. Page 323]

    that because an employee of the Domestic Relations Office told him that he would have to keep paying support for Debra despite the fact that she was 18, he was somehow denied a hearing on the question of whether the support order should have been vacated as to Debra.

Appellant's argument misses the point that the court below did not act to continue support for Debra without giving appellant a hearing. As discussed previously, the support obligation of appellant simply continued beyond Debra's eighteenth birthday under the 1972 support order in conjunction with which appellant had been given a hearing.

The fact that appellant's telephone request to the Domestic Relations Office to drop Debra from the support order was refused also does not establish that appellant was denied due process. All that appellant had to do to have been afforded a hearing on the question of whether the support order should be modified because Debra had turned 18 was to (as he eventually did) file a petition to modify the order. See Pa.R.C.P. 1910.18. The fact that appellant was unrepresented by counsel at the time of his request and apparently did not know of his opportunity to be heard on the question of his support obligations hardly establishes that he was denied such an opportunity.

Appellant next contends that the court below erred in not applying the standard set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent's total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent's total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary

[ 355 Pa. Super. Page 325]

    expenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.*fn3

In Stump, supra., this Court considered a case in which the appellee had sought the termination of a support order as to one of his children who had reached the age of 18, had graduated from high school and was attending a preparatory school. We held that the guidelines set forth in Melzer were to be used in the calculation of child support in that situation, with the added proviso that the amount of support determined by using the Melzer guidelines must not cause an undue hardship on the supporting parent.

Thus, in the instant case the court below should have used the Melzer guidelines as a framework for its decision. We must agree with appellant that the court did not do so, nor did it make all of the factual determinations necessary to an application of the guidelines. The court below failed to determine the parties' reasonable living expenses and, thus, could not have been able to determine appellant's ability to support Debra. See Melzer, supra. Moreover, while the court below states that its independent calculations

[ 355 Pa. Super. Page 326]

    confirm the parties' incomes as found by the hearing officer, it does not state what these incomes are, and the hearing officer's findings do not appear in the record before us.*fn4 Under these circumstances, we believe we must remand this case for the court to make the determinations necessary to an application of the Melzer formula.*fn5 The amount of support thus arrived at should be used by the court as a framework for its decision, keeping in mind the rule that any support ordered may not result in undue hardship to appellant. The court may, of course, take further testimony in order to aid it in making these determinations.

Order vacated. Case remanded for proceedings consistent with our opinion. Jurisdiction relinquished.*fn6

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