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PATRICIA J. GRIFFIN v. VINCENT A. GRIFFIN (03/29/89)

filed: March 29, 1989.

PATRICIA J. GRIFFIN
v.
VINCENT A. GRIFFIN, SR., APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 270 DR 1987.

COUNSEL

John P. Lawler, Stroudsburg, for appellant.

Anne C. Tiracchia, Stroudsburg, for appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Del Sole, Montemuro, Beck and Tamilia, JJ. Wieand and Del Sole, JJ., file a concurring and dissenting opinion.

Author: Rowley

[ 384 Pa. Super. Page 191]

This appeal of Vincent A. Griffin, Sr. (hereinafter "Husband"), is from a support order entered by the trial court on August 3, 1987. The order directs him to pay $600.00 per week toward the support of three children who were then under the age of eighteen*fn1 and to pay two-thirds of the college expenses of three older children: Cecilia, whose age as of the date of the order was twenty-three; Christine, who was then twenty; and Patricia, who was then nineteen. The order of support for Cecilia was for the 1987-88 academic year only; the order of support for Christine and Patricia was for the academic years 1987-88 and 1988-89. The order of support for the three younger children was made effective January 27, 1987, the date on which a claim for child support was made in the parties' divorce action at No. 2640 Civil of 1985.

Husband presents four arguments on appeal. They are: 1) the trial court erred in ordering him to pay two-thirds of the college expenses of Cecilia, given that she was already twenty-three; 2) the trial court erred in ordering him to pay two-thirds of the college expenses of Christine, who was herself the mother of a child; 3) the trial court failed to calculate Husband's support obligation in accordance with the formula established by the state Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); and 4) as a result of the foregoing errors, the total amount of support that Husband has been ordered to pay is excessive. Having concluded that the record in this case does not provide sufficient facts to enable us to address Husband's

[ 384 Pa. Super. Page 192]

    first issue, we vacate paragraph three of the trial court's order, which directs Husband to contribute to the college expenses of Cecilia, and remand for further proceedings on that claim. Having thoroughly reviewed the briefs and the record, we conclude, for the reasons set forth below, that the remaining issues raised by Husband are without merit. Accordingly, we affirm the remaining portions of the trial court's order.

The procedural history of the case is as follows: The parties separated on June 1, 1985. On November 18, 1985, appellant Husband filed a divorce action against appellee Patricia J. Griffin (hereinafter "Wife"). On April 7, 1987, Wife filed a complaint for support which resulted in the order that is the subject of this appeal.*fn2 The parties failed to reach an agreement at a support conference. Because the county support master had a conflict of interest which prevented him from hearing the parties' case, the trial court directed that, pursuant to Pa.R.C.P. 1910.11, the matter would be heard de novo by the court. The parties were directed to submit a stipulation of facts to the court within thirty days and to file memoranda of law, and the case was listed for argument on July 6, 1987. The parties complied

[ 384 Pa. Super. Page 193]

    with the court's order.*fn3 Following argument, the trial court entered the order at issue herein, and Husband filed a timely appeal. Neither party to this appeal objects to the procedure utilized in this case. Because of the importance of the issues raised by Husband, the case has been argued before an en banc panel of this Court.

Preliminarily, we note that the amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. Melzer v. Witsberger, 505 Pa. at 475 n. 8, 480 A.2d at 997 n. 8. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. Id.; DeWalt v. DeWalt, 365 Pa. Super. 280, 283, 529 A.2d 508, 510 (1987). A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground. Shindel v. Leedom, 350 Pa. Super. 274, 279, 504 A.2d 353, 355-56 (1986).

I.

Husband's first and second issues concern the obligation of a parent to support a child over the age of eighteen who is seeking a college education. Pennsylvania is one of a number of states whose child support statutes do not limit child support to "minor children." Horan, Postminority Support for College Education -- A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 592 (Winter 1987). In fact, our child support statutes expressly provide for the possibility that parents may be liable for the

[ 384 Pa. Super. Page 194]

    support of children who are eighteen or older.*fn4 23 Pa.C.S. ยง 4321. Our case law has identified two situations in which such a support obligation may be imposed: 1) where the child suffers from a physical or mental defect that renders self-support impossible, Brown v. Brown, 327 Pa. Super. 51, 54, 474 A.2d 1168, 1169 (1984); Verna v. Verna, 288 Pa. Super. 511, 515, 432 A.2d 630, 632 (1981); Commonwealth ex rel. Welsh v. Welsh, 222 Pa. Super. 585, 588, 296 A.2d 891, 893 (1972), and 2) where the child wishes to obtain a college education. Pennsylvania is among a minority of states that impose a support obligation in the latter situation. Horan, supra, at 592 n. 9.

A parent's legal obligation to support a child in college, absent a specific agreement to do so, was first established in Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182 (1963). In that opinion this Court held that a parent may be required to support a child attending college if two conditions are met: first, the child must be able and willing to pursue successfully his or her course of study; second, the parent must have sufficient estate, earning capacity, or income to enable him or her to comply with the support order without suffering undue hardship. Id., 200 Pa. Superior Ct. at 643-44, 190 A.2d at 184. These conditions have been reaffirmed in numerous subsequent cases. See, e.g., DeWalt v. DeWalt, 365 Pa. Super. at 287, 529 A.2d at 512; Brown v. Brown, 327 Pa. Super. at 53, 474 A.2d at 1169; Curtis v. Curtis, 326 Pa. Super. 40, 44, 473 A.2d 597, 599 (1984); Lederer v. Lederer, 291 Pa. Super. 22, 25, 435 A.2d 199, 201 (1981).

In addition to the basic elements of the parental obligation, a number of subsidiary issues have also been

[ 384 Pa. Super. Page 195]

    resolved by our courts. It is settled law, for example, that a child's own resources may be taken into account. Miller v. Miller, 353 Pa. Super. 194, 197, 509 A.2d 402, 404 (1986); Ulmer v. Sommerville, supra. A child will not necessarily be required to contribute as much as possible, however, Miller v. Miller, 353 Pa. Super. at 197-98, 509 A.2d at 404, nor will he or she be required in every case to attend a state-supported institution rather than a more expensive private one, Commonwealth ex rel. Larsen v. Larsen, 211 Pa. Super. 30, 33, 234 A.2d 18, 20 (1967). Although our courts have held that the post-secondary school education to which parents may be required to contribute includes private preparatory school, Commonwealth ex rel. Stump v. Church, 333 Pa. Super. 166, 172, 481 A.2d 1358, 1361 (1984), and commercial art school, Kopp v. Turley, 359 Pa. Super. 106, 110-11, 518 A.2d 588, 591 (1986), we have declined to extend the parental obligation to include postgraduate and professional training, Brown v. Brown, 327 Pa. Super. at 55-56, 474 A.2d at 1170.

As Husband notes in his first issue, an additional limitation on the parental obligation to pay a child's college expenses is that only in exceptional cases may that obligation be extended past the child's twenty-third birthday. DeWalt v. DeWalt, 365 Pa. Super. at 289, 529 A.2d at 513 (citing Brown v. Brown, 327 Pa. Super. at 55, 474 A.2d at 1170). As we explained in DeWalt:

In Brown v. Brown [supra ], we stated that a parent's obligation to pay his child's college expenses may not be extended past the child's twenty-third birthday except in unusual cases . . . . This is not an arbitrary number . . . . It is consonant with the policies underlying [the] parental obligation.

The duty to pay for a child's college education in certain circumstances results from a balancing of competing policies. The disadvantages forced upon children by their parents' divorce should be minimized. Parents who would have supported their child's education if they had not divorced, should not be encouraged to further victimize

[ 384 Pa. Super. Page 196]

    a child by leaving him without a college degree. However, this parental obligation is not limitless and does not extend into perpetuity . . . . [I]t is dependent upon a showing by the child that he is interested in pursuing his education.

By the age of twenty-three, a young adult will usually have had at least four years to complete his college education. If he has shown the requisite interest, he should have his degree in hand. If he has not demonstrated this commitment and has failed to take advantage of the opportunity given him, he has waived any right to complain about a lack of parental interest . . . . Of course, exceptional cases will arise where the circumstances are such that this rule should not be inflexibly applied.

Id. 365 Pa. Super. at 289-90, 529 A.2d at 513 (citations omitted; emphasis added). We identified two circumstances in which the rule should not be applied: where a child has been unable to complete his or her education because the parent refused to pay support, and where the child was unable ...


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