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filed: February 19, 1988.


Appeals from the Order of the Court of Common Pleas, Butler County, Family Division, at No. F.C. 80-350-S.


Mark A. Criss, Zelienople, for Senka.

Brosky, Tamilia and Kelly, JJ. Brosky, J., filed a concurring opinion, joined by Kelly, J.

Author: Tamilia

[ 371 Pa. Super. Page 501]

The parties to this action are divorced parents of a college-aged daughter, Lynn Senka. Both parties have remarried since their divorce.

On August 30, 1985, with Lynn's consent, the plaintiff/mother filed a petition to modify support requesting on-going support for Lynn, who was then in college, and an increase in support for Lynn's minor brother. In October 1985, the court ordered the father to pay $350 per month for support of the two children ($175 each). The father filed exceptions on October 28, 1985, arguing the domestic relations hearing officer had totally ignored substantial evidence that Lynn was totally unprepared, unqualified and unfit to attend college and obtain a degree. A hearing de novo was held on December 9, 1985 and May 27, 1986 and, on July 3, 1986 (filed July 8, 1986, hereinafter referred to as Order of July 8, 1986), the court issued findings of fact and

[ 371 Pa. Super. Page 502]

    conclusions on the question of whether father in this case has a legal duty to support his daughter in an institution of higher academic education when the facts seemed to indicate she might not have a reasonable chance of success in such a program.

The court concluded Lynn had failed to prepare herself for a college education and, based on her scholastic record, her father had no legal duty to contribute to an academic education for her at the college or university level. At the same time, the court concluded that both parents currently had earnings which would permit them to maintain Lynn in a state college without severe hardship. After reaching the foregoing conclusions, the trial court ordered the October 18, 1985 Order for support of Lynn Senka of $175 per month be rescinded as of November 1, 1985. Order of 7/8/86, p. 5.

Mother filed post-trial motions on July 22, 1986, urging error in the court's determination that because of Lynn's prior scholastic record, father has no legal duty to support Lynn while she attends college. Father filed preliminary objections to these post-trial motions, arguing mother was not a party to the action and thus lacked standing to file post-trial motions. The court issued a memorandum and Order on September 12, 1986, denying father's preliminary objections and, except for a correction to its July 8th Order, otherwise dismissing both mother and father's post-trial motions. Mother filed notice of appeal on October 10, 1986, from the September 12, 1986 Order. Father subsequently filed a notice of cross-appeal on October 23, 1986, also from the September 12, 1986 Order. Mother's argument to this Court is that the trial court erred in determining that Lynn is not academically fit to seek a college education, and consequently deciding father has no legal duty to pay support for Lynn's college pursuits. Father has appealed to argue that should this Court reverse the trial court and find Lynn academically fit, we should not then affirm the court's conclusion that he possesses sufficient income to make payments without incurring undue hardship.

[ 371 Pa. Super. Page 503]

Lynn enrolled in an elementary education course at Edinboro State University in August of 1985. At that time, she was an 18-year old graduate of Seneca Valley High School. While she was a senior at Seneca Valley, Lynn earned a C average; her grade average was, however, bolstered by A's she received in courses such as physical education, mass media, contemporary issues and family living. She received a D in English fundamentals and withdrew from geometry because she was doing poorly.

The results of Lynn's Scholastic Aptitude Test (S.A.T.) test, which she took in her junior year, do not prove her to be college material. She scored a 240 on the verbal section and a 320 on the math section. An expert witness, Dr. William Reed, filed a written report and testified at trial. Dr. Reed is a professional vocational rehabilitation specialist and is a member of the board of trustees of Point Park College in Pittsburgh, Pennsylvania. Dr. Reed testified that S.A.T. test scores range from 200 to 800 on each subtest, with an automatic score of 200 on each test for filling out the application appropriately. He further testified that 89 per cent of all college-bound students in Pennsylvania scored higher than Lynn did on the math section, and 96 per cent of all college-bound students in Pennsylvania did better than Lynn did on the verbal portion.

Nevertheless, Lynn was accepted by Edinboro State University during the summer of 1985. She testified she would have preferred to attend Indiana University of Pennsylvania, but they did not have dormitory space for her at the time she applied. Dr. Reed explained in his expert's report:

[I]t appears that non-educational factors enter into the decision for accepting students who are 'not college material'. Many of those other reasons seem to have an economic basis. Most colleges are in financial difficulty. They need the financial support of every student that they can get.

Defendant's Exhibit 3 at p. 5.

One year at Edinboro University caused Lynn to incur a bill of $3,975 for both fall and spring tuition and boarding costs, plus an ...

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