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CARL J. LEONARD v. SUSAN LEONARD (06/20/86)

filed: June 20, 1986.

CARL J. LEONARD, APPELLANT,
v.
SUSAN LEONARD, FOR AND ON BEHALF OF LYNN LEONARD, APPELLEE



Appeal from the Order Entered August 19, 1985 in the Court of Common Pleas of Luzerne County, Civil No. 352 of 1985.

COUNSEL

Gifford Cappellini, Wilkes-Barre, for appellant.

Christopher P. Decker, Wilkes-Barre, for appellee.

McEwen, Olszewski and Kelly, JJ. Kelly, J., files concurring statement.

Author: Olszewski

[ 353 Pa. Super. Page 606]

Appellant challenges the award entered as the result of the master's recommendation providing reimbursement for the past college expenses of the parties' daughter, Lynn, and contribution for further expenses incurred. The issues concern two areas: the settlement agreement signed by Lynn's parents, and the financial support imposed upon appellant in connection with Lynn's college education. Because we find no error in the award determination, we affirm the lower court's order.

Susan and Carl Leonard were married in 1974. Thereafter, Carl adopted Joseph and Lynn, Susan's two children by a previous marriage. Carl filed for divorce in 1983; soon after, the parties entered into a settlement agreement. In 1984, he left the marital home but continues to pay the

[ 353 Pa. Super. Page 607]

    mortgage and taxes on the property.*fn1 Carl is presently on the furloughed list with the D & H Railroad and collects $125 per week unemployment compensation, but occasionally works on a "called as needed" basis. Susan is employed as a legal secretary with a salary of approximately $14,800 annual gross. Both children reside with Susan.

Lynn Leonard is a 19 year old sophomore at Ursinus College.*fn2 She financed her freshman year through school loans, grants, scholarships and help from her mother. It is undisputed that her father contributed no financial assistance outside of birthday and graduation gifts. It is also undisputed that absent enforcement of the lower court's support award, appellant would not contribute to Lynn's sophomore year expenses and these would be satisfied once again through loans, grants, scholarships and help from her mother.

Axiomatic to our discussion is paragraph 7 of the settlement agreement, captioned College Education. Substantively, Carl agreed to pay the undergraduate educational loans for both Joseph and Lynn subject to certain limitations. First, his total share could not exceed $2,500 per year per child. Next, this obligation cannot be for more than four years of education. Third, Carl's share will be determined in accordance with the child's grade point average (GPA). The higher the average, the greater the payments assumed by appellant. Analogous to this provision is the restriction that Carl will have no repayment obligation should the G.P.A. fall below 2.0. In this instance, the child will be responsible for the full amount of the loan.

The entire settlement agreement is presently being challenged by Susan in an equity action before the Luzerne County Court of Common Pleas.*fn3 As such, the validity of

[ 353 Pa. Super. Page 608]

    this provision does not concern us. With regard to this contract, it has long been the rule in this jurisdiction that parents cannot bargain away the right of support for their children despite the validity and legality of the contract. Oman v. Oman, 333 Pa. Super. 356, 482 A.2d 606 (1984); Commonwealth ex rel. Snively v. Snively, 206 Pa. Super. 278, 212 A.2d 905 (1965); Commonwealth ex rel. Rossi v. Rossi, 161 Pa. Super. 86, 53 A.2d 887 (1947). Notwithstanding this rule, however, we note with great interest that paragraph 7 of the settlement agreement concerns the prospective payments of loans. We find that the issue sub judice, current contributions for college expenses, is independent of any future obligation.

The next question for our review is the propriety of the award order. Our Court is required to defer to the court below and will not interfere with its determination absent a clear abuse of discretion. Commonwealth ex rel. Cochran v. Cochran, 339 Pa. Super. 602, 489 A.2d 804 (1985); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa. Super. 32, 457 A.2d 98 (1983); Commonwealth ex rel. Grossman v. Grossman, 188 Pa. Super. 236, 146 A.2d 315 (1958). We must decide if the order can be supported on any grounds and whether there was sufficient evidence on the record to do so. Commonwealth ex rel. Leider v. Leider, 335 Pa. Super. 249, 484 A.2d 117 (1984). At all times, we must keep in mind that a finding of abuse of discretion is not lightly made. ...


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