Appeal from the Order of the Court of Common Pleas, Berks County, Civil Division, at No. 1100 S 1984.
Kenneth C. Myers, Reading, for appellant.
Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Olszewski, Montemuro, Popovich and Johnson, JJ. Cirillo, President Judge, files a concurring opinion. Popovich, J., concurs in the result.
[ 372 Pa. Super. Page 114]
This is an appeal from an order compelling appellant to pay $15.00 weekly towards appellee's college educational endeavor. Appellant presents two arguments for our consideration: (1) appellee has failed to meet his burden of proof to demonstrate a need for support; and (2) appellant should not be required to contribute to the college expense of an estranged child where there is no contribution by the child's mother and the expense would constitute a hardship. After careful consideration of the record and arguments advanced by the parties, we reverse the order of support.
At the time of the initiation of this proceeding, appellee was nineteen years of age and enrolled as a full-time student at Penn State University, Berks County. He was employed and worked approximately thirty-five hours a week with an average weekly net income of $110.00. Although his tuition is $1,123.00 per semester, he receives grants totaling $575.00 per term, leaving a balance of $548.00 to be paid per term. He testified to additional weekly expenses of: $30.00 room and board to his mother, $15.00 transportation costs, and $15.00 meal expenses. Appellee also pays a $365.00 per year car insurance expense and approximately $180.00 per semester for books.
Appellant's pay stubs show his bi-weekly net income to be $840.65. Appellant testified that he is currently working, yet had been unemployed at times prior to the support hearing. He admitted to an existing weekly obligation of $40.50 for the support of another child (appellee's sister), liabilities in excess of $53,000 to the Commonwealth of Pennsylvania for unpaid unemployment and sales taxes, and over $17,000 for employee withholding, taxes, debts of
[ 372 Pa. Super. Page 115]
over $17,000 attributable to a former wife (not appellee's mother), and a $23,000 mortgage.
Both parties maintain that they have had no contact in the last three years and appellee admits that he never discussed his educational plans with his father before enrolling in college. Upon this record, the trial court found that appellee had demonstrated a need for educational support and that appellant was capable of contributing to his son's college education without undue hardship.
The trial court correctly indicated in its opinion that consideration must be given to the financial situation and capacity of both parent and child in determining whether or not to order educational support. Leonard v. Leonard, 353 Pa. Super. 604, 510 A.2d 827 (1986), Miller v. Miller, 353 Pa. Super. 194, 509 A.2d 402 (1986). With respect to the parent's financial ability, any ordered support should be payable by the parent without imposing an undue hardship upon that parent. The trial court found that appellant was capable of paying support without undue hardship. We cannot agree.
During initial proceedings the hearing officer found appellee's weekly net income to be $120 and appellant's to be $165.52. Although the documentation contained in the record does not detail the exact specifications of this finding, it does appear to reflect that, taking financial obligations into account, the parties are not that disparately situated financially speaking. One breakdown of appellant's monthly expenses was contained in the record. It indicated monthly expenses of $1,794.37 and did not include such items as medical expenses, work tools and trade journals and publications. Appellant was earning a net pay of $840.65 every two weeks and it would appear that his entire income must be devoted to meet these monthly expenses. But, perhaps more troubling to the court is the fact that appellant is indebted to ...