Byrnes v. Caldwell

• Decision Date: 18 May 1995
• Citation: 439 Pa.Super. 574,654 A.2d 1125
• Parties: Kathleen M. BYRNES v. Harry D. CALDWELL, Appellant.
• Court: Pennsylvania Superior Court

Page 1125

654 A.2d 1125

439 Pa.Super. 574

Kathleen M. BYRNES v. Harry D. CALDWELL, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 6, 1994.

Filed Feb. 9, 1995.

Petition for Allowance of Appeal Granted May 18, 1995.

Francis Recchuiti, Norristown, for appellant.

Peter E. Moore, Spring House, for appellee.

Albert Momjian, Huntingdon, amicus curiae.

Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and SAYLOR, JJ.

ROWLEY, President Judge:

In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992, our Supreme Court held that a divorced parent, like any other parent, owes a duty of support to his or her child until the later of the child's eighteenth birthday or graduation from high school, but not beyond. Pivotal to the Court's decision was the fact that no parental duty to contribute to a child's post-secondary education had been imposed by the General Assembly despite that body's active involvement in domestic matters via the Divorce Code and Domestic Relations Act.

The following year the General Assembly enacted 23 Pa.C.S. § 4327 ("Act 62") with the stated intention of codifying the decisions of this Court, in Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), and subsequent cases, establishing the obligation of parents who are separated, divorced, unmarried, or otherwise subject to an existing support obligation to contribute, as and where appropriate, to a child's post-secondary education. By its terms Act 62 applies not only to support actions pending at the time of its enactment, but also to support orders in effect on or entered since November 12, 1992, the day before the Supreme Court handed down its decision in Blue.

The obligation of appellant Harry D. Caldwell ("Father") to contribute to the support of his college-age daughter, Elizabeth Caldwell, was terminated after the Supreme Court's decision in Blue and restored after the legislature's enactment of Act 62. Father's timely appeal from the trial court's order of February 15, 1994, restoring his support obligation has been certified to this Court en banc for resolution of two constitutional issues raised therein:

1) Does Act 62 violate the equal protection clauses of the United States and Pennsylvania constitutions?

2) Does retroactive application of Act 62 constitute a constitutionally impermissible ex post facto law?

In addition to these constitutional claims, Father asserts the statutory defenses of undue hardship and estrangement. Concluding, after careful consideration, that none of Father's claims entitles him to relief, we affirm the order of the trial court.

Elizabeth Caldwell was born to Father and appellee Kathleen M. Byrnes ("Mother") on August 18, 1974. The parties separated in 1985 and were divorced in 1989. Elizabeth has lived with Mother since the parties' separation. On April 23, 1992, Mother filed a petition requesting that Father be ordered to pay college tuition for Elizabeth. Pursuant to Pa.R.C.P. 1910.3(4), Elizabeth provided her written consent to the petition. On July 2, 1992, Father responded with a petition requesting that the trial court vacate an existing order of support as of Elizabeth's upcoming eighteenth birthday, August 18, 1992.

Elizabeth began her studies at Gwynedd Mercy College in the fall of 1992. On November 13, 1992, the Supreme Court decided Blue. Shortly thereafter, the trial court granted Father's petition and discharged his support obligation. Within a week of the legislature's enactment of Act 62, Mother petitioned the trial court to open or reinstate its order of support.

On February 15, 1994, following a master's hearing and a subsequent de novo hearing before the trial court, the trial court entered an order directing Father to pay the following:

1) 55% of the cost of Elizabeth's tuition, fees, books, and other educational materials, after deduction of scholarships, Father to pay this amount within thirty days after the bills for these expenses are submitted to him;

2) support in the amount of $75.00 per week while Elizabeth resides with Mother and commutes to college;

3) $50.00 per week on arrearages (i.e., Father's portion of Elizabeth's past college expenses); and

4) 55% of Elizabeth's unreimbursed medical and dental expenses.

This timely appeal followed. We note that notice of the appeal has been given to the Attorney General of the Commonwealth, as is required where the constitutionality of a statute is challenged.

I. Non-constitutional Claims

It is a well-settled principle that we will not decide a constitutional question unless absolutely required to do so. Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 615, 585 A.2d 1091, 1096 (1991) (en banc), aff'd, 535 Pa. 252, 634 A.2d 1099 (1993). Accordingly, we turn to the fact-based defenses asserted by Father. If either of those claims affords him relief, we will not be required to consider his constitutional challenges to the statute. The burden is on the person asserting undue hardship, 23 Pa.C.S. § 4327(f)(1), or estrangement, 23 Pa.C.S. § 4327(e)(5), to prove his or her assertion by the fair weight and preponderance of the credible evidence. In considering such a claim, we will not disturb the determination of the trial court (i.e., the factfinder) absent an abuse of discretion. McGettigan v. McGettigan, 433 Pa.Super. 102, 106-07, 639 A.2d 1231, 1233 (1994) (citing Blue). An abuse of discretion is not merely an error of judgment; rather, it is the overriding or misapplication of the law, a manifestly unreasonable judgment, or a judgment resulting from partiality, prejudice, bias, or ill will. Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982), quoting Garrett's Estate, 335 Pa. 287, 293, 6 A.2d 858, 860 (1939).

A. Undue Hardship

We consider, first, Father's assertion of undue hardship. Act 62 provides in pertinent part that "[a] court shall not order support for educational costs if ... [u]ndue financial hardship would result to the parent." 23 Pa.C.S. § 4327(f)(1). The trial court found that its order would not result in undue hardship to Father.

Father has failed to persuade us that the trial court has abused its discretion in this regard. The trial court found that Elizabeth's college tuition and incidental expenses totaled approximately $11,400.00 per year and that she had obtained $4,000.00 in scholarships, leaving an amount due of $7,400.00. In addition, the trial court found that Father's net monthly income is $3,634.00. Father does not challenge these figures, but merely asserts that he will suffer undue hardship if required to pay $216.65 per month on arrears and $324.98 per month in support, as well as the lump sum of $4,070.00 per year.

Father provides us with no information concerning, inter alia, his assets, expenses, or ability to borrow. Having been given no explanation as to why the obligations set forth in the trial court's order will cause him to suffer undue hardship, we conclude that the trial court did not abuse its discretion in this regard.

B. Estrangement

We reach the same conclusion with regard to Father's asserted defense of estrangement. As the trial court notes, one factor to be considered in deciding whether to require a parent to contribute to a child's post-secondary educational costs is "[a]ny willful estrangement between parent and student caused by the student after attaining majority." 23 Pa.C.S. § 4327(e)(5) (emphasis added). Our Court has held that

[e]strangement between a parent and child will only relieve or lessen a parent's duty to pay support towards a child's college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent's outstretched hand.

Fager v. Fatta, 395 Pa.Super. 152, 156, 576 A.2d 1089, 1091 (1990) (quoting Bedford v. Bedford, 386 Pa.Super. 349, 358, 563 A.2d 102, 106 (1989)). In light of the legislature's stated intention to codify pre-Blue case law with the enactment of Act 62, we conclude that this Court's rulings on estrangement apply to cases, such as the one before us, arising under that statute.

In the present case, the trial court found that Father "has made absolutely no effort to maintain any contact or relationship with Elizabeth since she was approximately 12 or 13 years old." Trial Court Opinion at 3. Father's testimony at the trial de novo supports this finding. Father asserts that Mother has prevented him from contacting Elizabeth and that since Elizabeth turned eighteen she has not contacted him. Even if Father's assertions are true, they do not indicate that Elizabeth, since reaching the age of eighteen, has willfully estranged herself from Father. We conclude, therefore, that Father has failed to prove an abuse of discretion concerning the issue of estrangement.

II. Constitutional Claims

As neither of these defenses entitles Father to relief, we consider his constitutional challenges to Act 62. In doing so, we are mindful that

[a party challenging the constitutionality of a statute] carries a heavy burden of persuasion. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. Id.; Parker v. Children's Hospital of Pennsylvania, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). In determining the legislature's intent in writing the statute at issue, we presume that the legislature did not intend to violate the state or federal Constitution. 1 Pa.C.S. § 1922(3); Krenzelak v. Krenzelak, [503 Pa. 373, 381, 469 A.2d 987, 991 (1983) ]. All doubts must be resolved in favor of a finding of constitutionality. Consumer Party v. Commonwealth, 510 Pa. at 175, 507 A.2d at...