Milne v. Milne

• Decision Date: 22 March 1989
• Citation: 383 Pa.Super. 177,556 A.2d 854
• Parties: , 57 USLW 2595, 52 Ed. Law Rep. 1128 Caleb MILNE v. Karen MILNE and David Milne, IV. Appeal of Karen MILNE.
• Court: Pennsylvania Superior Court

Page 854

556 A.2d 854

383 Pa.Super. 177, 57 USLW 2595, 52

Ed. Law Rep. 1128

Caleb MILNE v. Karen MILNE and David Milne, IV.

Appeal of Karen MILNE.

Superior Court of Pennsylvania.

Argued Dec. 18, 1987.

Filed March 22, 1989.

Rachel Munafo, Philadelphia, for appellant.

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

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

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH, and JOHNSON, JJ.

OPINION BY CIRILLO, President Judge.

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. ¹ 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.

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. ² We conclude that estrangement should be a consideration in determining whether to award educational support for an adult child. ³ 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 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. ⁴ Horan, supra at 596.

The most common reason for seeking support beyond the age of eighteen is postsecondary 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. 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 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). ⁵ 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. 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 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).

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