Spitzer v. Tucker

• Decision Date: 21 May 1991
• Citation: 591 A.2d 723,404 Pa.Super. 539
• Parties: Mary Jo SPITZER, Appellee, v. Francis J. TUCKER, Appellant.
• Court: Pennsylvania Superior Court

Page 723

591 A.2d 723

404 Pa.Super. 539

Mary Jo SPITZER, Appellee, v. Francis J. TUCKER, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 31, 1991.

Filed May 21, 1991.

William J.C. O'Donnell, Paoli, for appellant.

Mark C. Morrow, Philadelphia, for appellee.

Before CAVANAUGH, CIRILLO and BROSKY, JJ.

CAVANAUGH, Judge:

The present appeal is from a support order following a petition initiated by appellee, Mary Jo Spitzer, against her ex-husband, Francis J. Tucker, to obtain from Tucker additional support in order to fund his son Will's educational expenses at Syracuse University. After extensive hearings before a master which took place at three separate sessions held between June and October of 1989, the court entered an order in June of 1990 which found that each parent had sufficient resources to allow for payment of the educational expenses and that each, after consideration of personal living expenses, had sufficient discretionary income available for this purpose. After ordering the payment of a modest contribution by the student, the court directed that each parent contribute one-half of the tuition, board and related expenses.

Appellant Tucker attacks this order and argues that undue discretion was vested in the student's choice of school and that the court failed to properly weigh the relevant factors; that the court erred in refusing to assign a sufficient earning capacity to the student's mother; and the court failed to properly apply the "Meltzer" formula.

A panel of this court recently had occasion to restate the law applicable to our present review:

It is well established that the scope of appellate review in child support cases is very narrow. The appellate court will disturb a trial court's findings only when the judge has clearly abused his or her discretion. "[A] finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence." Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986) (citations omitted). What constitutes an abuse of discretion is also well settled. It is not "merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused." Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 794 (1985) (citation omitted). The scope of review in such cases is not altered by the fact that the order is for college support as opposed to support for a minor child. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102, 104 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986); Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 234 A.2d 18 (1967). Judged by this stringent standard, we find no abuse of discretion.

The obligation of a parent with adequate financial resources to furnish support for a child's college education is well settled in Pennsylvania. See e.g., Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). A court will impose this obligation on a parent only if the burden of college support will not cause undue hardship. Leonard v. Leonard, supra; Bedford v. Bedford, supra. Furthermore, if it can be shown that "a parent can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation." Miller v. Miller, supra, 509 A.2d at 404.

Pharoah v. Lapes, 391 Pa.Super. 585, 571 A.2d 1070, 1072-3 (1990).

We have considered the testimony before the master, the trial court's opinion, the briefs of the parties, and the oral argument presented to this court. From the narrow confines of our posture of review, we find that the arguments of appellant are without merit and we affirm the order of the trial court. We believe that the goal of the court in higher education support cases should be to "replicate, as nearly as possible the decision the intact family would have made" (See Pharoah, supra, Cirillo, J. dissenting, 571 A.2d at 1077; Milne v. Milne, 383 Pa.Super. 177, 187, 556 A.2d 854, 861 (1989). In such a situation one would expect, for example, that a father who was only subject to minimal support obligations for almost eighteen years would have made economic preparations to assist in his only son's post-secondary education; that a well-educated parent would not resort to a claim of entry level employment competence, or shield personal trust resources to resist what should ordinarily be considered a paramount family aspiration; and finally, that the prospective student would recognize the enormous variety of excellent educational institutions available and yield in his personal preferences to choices dictated by familial resources and wisdom. Nevertheless, the trial court here was faced to some extent with a fait accompli, and fixed positions by the parties. Thus, there is substantial evidence that both parents can make equal contributions to the educational enterprise without undue hardship and there is no necessity for a circumscribed evaluation of Mrs. Spitzer's earning capacity. Moreover, the record supports the trial court's conclusion with respect to this issue, and we find the court's reasoning and disposition to be a valid exercise of discretion.

Finally, since the post-secondary support obligation is governed by specific caselaw in Pennsylvania, we see no reason for application of the precise requirements of the Meltzer formula.

Order affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge, dissenting.

Because I feel that Francis J. Tucker should not be required to contribute to his son's education at Syracuse University, I respectfully dissent.

Mr. Tucker and Mary Jo Spitzer were divorced in 1973. Mr. Tucker, pursuant to a support order entered in Chester County, was providing $40.00 per week for the support of his son Will Tucker. On January 31, 1989, Ms. Spitzer filed a petition seeking financial contributions from Mr. Tucker for Will's college expenses. Three days of hearings were held and a recommended order was entered to which both parties filed exceptions. The trial court found that Mr. Tucker, an attorney, earns approximately $60,000.00 annually, while Ms. Spitzer, who is the beneficiary of a trust fund and who is a certified teacher, was assigned an earning capacity of $40,000.00 per year. ¹ Following oral argument, the Honorable Thomas J. Gavin ordered, in pertinent part, that Will would be responsible for the first $2,000.00 of his college expenses and that the remaining expense would be borne equally by both parties. This timely appeal followed.

On appeal, father argues, among other things, that he should not be required to contribute to the cost of Will's Syracuse education because Will's college selection was arbitrary and because Will could receive a comparable education at the Pennsylvania State University ("PSU") for less than half the cost of Syracuse. ² I agree.

We are once again asked to determine whether the trial court abused its discretion in determining a support award. Although the instant case concerns the support of an adult child, it is instructive to examine the social and moral realities which require court intervention in a divorced family's relationships. It is well settled that the duty to support a minor child is virtually absolute. Sutliff v. Sutliff, 339 Pa.Super. 523, 537, 489 A.2d 764, 771 (1985), modified on appeal, 515 Pa. 393, 528 A.2d 1318 (1987). While courts and legislatures have only recently concerned themselves with child support obligations, see Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 6 Fam.L.Q. 1, 6 (1990) (hereinafter Krause ), as early as 1765, Blackstone aptly summarized the rationale for such obligations:

The duty of parents to provide for the maintenance of their children, is a principle of natural law.... By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.

1 W. Blackstone, Commentaries on the Laws of England 447-448 (1765). Maintenance in 1765, however, did not extend far beyond food, clothing and shelter. Traditionally, such economic support was premised upon reciprocity. Krause, at 18. Specifically, support received by the young child morally and legally obligated the adult child to support the aged parent. Id. Prior to the advent of Social Security, child support was an investment the supporting parent made to be recovered in later years. Id.

Instantly, Will has requested his father to contribute to his college education. While a college education is increasingly viewed as a necessity, the obligation to support a college student is a qualified one. Milne v. Milne, 383 Pa.Super. 177, 183, 556 A.2d 854, 858 (1989). The basic test for fashioning an award of support for post-secondary education is well settled:

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 the parent to contribute to that effort without undue hardship.

Id. (citations omitted). The above elements do not exist in a vacuum; when determining an award for college support the trial court is required to weigh and evaluate a number of factors peculiar to each case which are outside the two tier test. Id.; see also Pharoah v. Lapes, 391 Pa.Super. 585, 596, 571 A.2d 1070, 1076 (1990) (Cirillo, P.J., dissenting). Numerous cases have considered factors outside the narrow two tier test when fashioning support...