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filed: March 22, 1989.


Appeal from the Order Entered September 9, 1986 in the Court of Common Pleas of Montgomery County, Civil, No. 37468, Dkt. No. D-1671-86.


Rachel Munafo, Philadelphia, for appellant.

Norton A. Freedman, Lansdale, for Caleb Milne, appellee.

David S. Rasner, Philadelphia, for David Milne, appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Olszewski, Montemuro, Popovich, and Johnson, JJ. McEwen, J., files a dissenting opinion. Olszewski, Brosky and Popovich, JJ. join McEwen, J.

Author: Cirillo

[ 383 Pa. Super. Page 179]

Karen Milne appeals from a support order entered by the Court of Common Pleas of Montgomery County requiring her to contribute the sum of $3,250 per year toward the college expenses of her estranged son, Caleb Milne. We affirm in part and vacate in part.

Karen Milne separated from her husband, appellee David Milne, IV, in December, 1984 after a twenty-two year marriage.*fn1 During their marriage, the couple had two children. At the time of the separation, the younger child, Caleb Milne, was a senior in high school. At first, Caleb continued to reside in the marital home with his mother. However, Caleb became estranged from his mother and, in March of 1985, he voluntarily moved in with his father. Karen Milne testified that prior to Caleb's departure, he engaged in several arguments with her which erupted into physical attacks on her. On one occasion, Caleb spit in his mother's face. More than once, he pushed her so that she fell down and at least twice, he struck her.

After Caleb left his mother's house, he ceased all communication with her. In the fall of 1985, he entered the University of Richmond in Virginia. He completed his freshmen year there, attaining a 3.0 grade point average. All of Caleb's expenses during his freshmen year were paid for by his father, whom Caleb lived with during the time he was not in residence at the university.

In February of his freshmen year, David Milne, IV, filed a petition for special relief on behalf of his son. This petition requested the court to issue an order permitting Caleb access to his mother's house to obtain his personal belongings. In support of the petition, Caleb appeared in court to testify against his mother.

[ 383 Pa. Super. Page 180]

During the summer following Caleb's freshmen year in college, Caleb was admitted to Occidental College in California for the completion of his undergraduate studies. When this college admitted him, he filed a complaint in child support against his mother and father to secure financial assistance in meeting his anticipated college expenses at Occidental College. He specifically alleged that his mother had neglected her duty to sufficiently support him.

An expedited hearing on the support complaint was held on September 4, 1986, at which the Honorable William T. Nicholas heard testimony of Caleb and his parents. Shortly thereafter, Judge Nicholas entered an order directing David Milne, IV to pay his son's entire tuition, room, board, and transportation to and from California. In the order, the court also concluded that Karen Milne's estrangement from her son was insufficient to excuse her duty to contribute to her son's college education and directed her to reimburse David Milne, IV the sum of $3,250 toward Caleb's college education expenses. Following entry of the court's order, Karen Milne filed an appeal to this court.

While Ms. Milne's appeal was originally decided by a panel of this court, we granted her petition for reargument because of the importance of the following issue of first impression: does an adult child's willful estrangement from his or her parent excuse that parent's duty to contribute to the child's college education.*fn2 We conclude that estrangement

[ 383 Pa. Super. Page 181]

    should be a consideration in determining whether to award educational support for an adult child.*fn3 In this case, we find that Caleb's total abandonment of his mother relieves her of the duty to contribute to Caleb's college expenses. Consequently, we vacate the portion of the trial court's order requiring Karen Milne to contribute to the college expenses of her son, Caleb.

Pennsylvania is counted among the "enlightened" jurisdictions that permit divorce without fault. Pennsylvania can also be considered enlightened in concerning itself with the futures of the children of those divorces. It is one of at least nineteen jurisdictions that, under some circumstances, require those divorced parents to contribute to the college educations of their offspring beyond the age of eighteen. Moore, Parents' Support Obligations To Their Adult Children, 19 Akron L.Rev. 183, 184 (1985) (hereinafter Moore); Horan, Postminority Support for College Education -- A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 596 (1987) (hereinafter Horan). This is a departure from the historical application of the common law and interpretation of support statutes.

At common law the duty to support a child and provide him or her with the necessities of life carried with it the

[ 383 Pa. Super. Page 182]

    right of association and was reciprocal in that parents had a right to the child's services. Note, Support Obligations of the Non-Custodial Parent for Private Secondary and College Education: Toward a Uniform and Equitable Resolution, 16 Suffolk U.L.Rev. 755 (1982) (hereinafter Parental Support Obligations), n. 5 and cases cited therein; Post Majority Support: Oh, Dad, Poor Dad, 44 Temple L.Q. 319, 325 (1971) (hereinafter Post Majority Support). Today, this duty is absolute with regard to a minor child and does not depend on access of the parent to the child. Melzer v. Witsberger, 505 Pa. 462, 472, 480 A.2d 991, 996 (1984). It is the extension of this common law duty of support on which the courts of this Commonwealth most often ground their jurisdiction to award post-minority support. Our support statutes do not restrict the term "child" to minors, thereby leaving the way clear to award support to protect the welfare of children beyond the age of majority.*fn4 Horan, supra at 596.

The most common reason for seeking support beyond the age of eighteen is post-secondary education. As we said in Verna v. Verna, 288 Pa. Super. 511, 432 A.2d 630 (1981):

[T]he presumption is when a child reaches majority the duty of a parent to support that child ends . . . . The duty to support the adult child continues where the child is physically or mentally feeble or otherwise unemployable. The adult child, however, has the burden of proving the conditions that make it impossible for her or him to be employed.

Id., 288 Pa. Superior Ct. at 515, 432 A.2d 632 (citations omitted). Until the lowering of the age of majority to eighteen, the issue of requiring divorced parents to support

[ 383 Pa. Super. Page 183]

    children who were attending college did not arise as frequently. Horan, supra at 599; Parental Support Obligations, supra at 763. Initially, parents would not be compelled to provide such support unless they had agreed to do so. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 643, 190 A.2d 182, 183 (1963).*fn5 Our courts now go beyond any agreement of the parties to impose an obligation to lend assistance for college whether or not any promise was ever even implied. Id., 200 Pa. Superior Ct. at 643, 190 A.2d at 184. Increasingly, a college education is being viewed as a necessity. Parental Support Obligations, supra, at 756 n. 7; Post Majority Support, supra at 336; see also Commonwealth ex rel. Stump v. Church, 333 Pa. Super. 166, 481 A.2d 1358 (1984). However, the duty to support a college-bound youngster who has attained his or her majority remains a qualified one.

An award made after majority for contribution to college expenses is made within the discretion of the court. This exercise of discretion is bounded by a judicially promulgated test consisting of two factors: the desire and ability of the child to successfully pursue post-secondary education and the ability of parents to contribute to that effort without undue hardship. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. at 643, 190 A.2d at 184-85. In this Commonwealth, the above test has proven to be useful as a guideline for determining entitlement and in setting such awards. Adherence to it has also served the judiciary as welcome blinders, shielding it from some of the thornier

[ 383 Pa. Super. Page 184]

    aspects of this judicial imposition of extended parental duties. Neither of these elements exists in a vacuum. It is therefore necessary for the trial court to examine and weigh a number of factors peculiar to each case before determining a result.

Our case law reveals that we have already begun to look at factors outside the narrow two factor test when considering support awards for educational expenses. See Sutliff v. Sutliff, 515 Pa. 393, 403, 528 A.2d 1318, 1322 (1987) ("earnings of college age children may be considered . . . [as may] funds placed in trust for the benefit of a child or for support or education"); Chesonis v. Chesonis, supra (independent means of a college age child may be considered); Francis v. Francis, 358 Pa. Super. 391, 517 A.2d 997 (1986) (support for private school expenses depends, inter alia, on whether such expense is a reasonable expectation with regard to the standard of living of that family); Commonwealth ex rel. Stump v. Church, supra (reasonable expenses for maintenance of child are determined with view toward social station of family); DeVergilius v. DeVergilius, 329 Pa. Super. 434, 478 A.2d 866 (1984) (assets of children considered); Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) (expenses for support must be reasonable in view of social station in life); Commonwealth ex rel. Smith v. Smith, 217 Pa. Super. 1, 268 A.2d 161 (1970) (father's promise to daughter that he would send her to college considered in affirming support award); Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa. Super. 115, 184 A.2d 291 (1962) (child's attendance at private schools before divorce and fact that father had attended private schools considered).

We have also been faced with cases which ask collateral questions. For example, is there to be an age beyond which an adult child cannot benefit from such an award? On first blush, the two-pronged test set forth above would lead one to believe there was no age limit. However, in DeWalt this court was called on to address just such a question. We held that, absent extraordinary circumstances, a parent

[ 383 Pa. Super. Page 185]

    could not be held responsible for college aid after a child's twenty-third birthday. DeWalt, supra 365 Pa. Super. at 289-91, 539 A.2d at 513-14. We have also been called upon to decide whether a non-custodial parent can be made to contribute to graduate school. See Brown v. Brown, 327 Pa. Super. 51, 474 A.2d 1168 (1984) (trial court misapplied existing law to include professional training of an emancipated adult child among the obligations of a divorced parent); Colantoni v. Colantoni, 220 Pa. Super. 46, 281 A.2d 662 (1971) 3 (father not required to contribute to support of twenty-four year old married child in medical school). These questions call upon our courts to take into account a wider scope of issues than our current two-pronged test is capable of addressing. No case shows the inadequacy of our current test more than the one at bar.

There is in this case, as with many family matters before our courts, evidence of bitterness. The availability of money for Caleb to attend school appears to be the least of the matter. There is the suggestion that the father, versed in the law, has used this training as a cudgel to make life more difficult for his ex-wife. Even sadder, it seems that their son has taken sides and joined forces with his father against his mother. Let us not forget that this action pits son against mother. Caleb Milne and his mother are estranged. It is undisputed that it was Caleb's unilateral choice to leave his mother's house. Caleb's testimony shows his feelings of justification in cutting off relations with his mother and his lack of desire to improve them. The record indicates that, while her attempts to stay in contact with him have not been successful, she has made some 4 efforts to leave the door open for his approach, should he wish to do so. Her ability or success as a wife has little to do with her role as a mother. It is within the scope of this role, and its legal obligations, that our decision in this matter rests. One would hope that in the interim since this action was begun, some healing has taken place so that our decision today is no longer necessary. There is little doubt that this is a sad situation.

[ 383 Pa. Super. Page 186]

Perhaps, the single most compelling piece of evidence in this case is Ms. Milne's testimony that her son "spat in my face and shoved me so that I fell over. He never spat but once. He did push me more than once. He struck me at least twice." That any father would condone, let alone encourage, a son who has so abused his mother in taking legal action against her shocks the sensibilities of this writer. The dissent would add insult to injury by finding that Caleb is entitled to exact funds for college from his mother's already strained resources. Such compounding of the tragedy of this family cannot be countenanced. To do so would be to relieve Caleb of any responsibility for his actions, which were taken as an adult, however 5 embittered. Neither the passage of time, so favored as a panacea by the dissent, nor Caleb himself have done anything to mitigate the harm of his actions.

By refusing to perfunctorily apply the two-pronged test in this case, we are announcing that we are not content to focus on the pragmatic aspects of the case -- the wiseness of the investment (Caleb's aptitude to do college work) and the feasibility of making it (Karen Milne's ability to pay) -- to the exclusion of familial aspects so undeniably central to the policy concerns giving rise to our intervention in this area. We refuse to champion the importance of post-secondary education over that of adult responsibility.

Courts are traditionally, and for good reason, reluctant to cross the threshold of the family dwelling, for so far as they venture beyond that threshold, they have intruded. This caution undoubtedly underlies the dissent's avoidance of the issues in this case. The dissent is loathe to become involved in what it characterizes an adversarial proceeding to determine fault between parent and child. The view that courts should not interefere in family relationships is a fine approach, unless by taking it, the court 6 allows greater evil than that which it attempts to prevent.

The objective of the court is extending its protection to adult children of divorced parents is to ensure that they

[ 383 Pa. Super. Page 187]

    are not unjustly -- and that is the key word -- deprived of opportunities they would otherwise have had, had their parents not divorced.*fn6 The role of the courts in this endeavor should be one of substituting its judgment, as nearly as possible, for that of the parents. But this should not be done mechanically or arbitrarily. In essence, the court stands in loco parentis in making such decisions. For that reason, we must put ourselves in the shoes of each parent whose case comes before us. Since each case presents unique individuals and circumstances, it is incumbent upon our judiciary to fashion each decision with the best interests of the whole family in mind.*fn7


In an intact family, there is mutual discussion of the desired choice of school and the affordability of the choice.*fn8 Parents exercise some control over the adult child by virtue of their provision of financial support.*fn9 Yet we routinely impose the obligation of educational support ...

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