Opinion
June 10, 1963.
September 12, 1963.
Parent and Child — Support — Children — Obligation to provide education beyond high school — Circumstances — Contemplation of parties — Evidence — Amount of order — Purpose of order.
1. Under appropriate circumstances, an order may be entered against a father for the support of a child pursuing his education beyond high school.
2. In a proceeding for the support of children, in which it appeared that defendant, after his son, aged eighteen years, had finished high school, enrolled him in a two-year course in a business school and arranged for lodging for the son, it was Held that the conduct of defendant in connection with his son's enrollment in the business school demonstrated that further education was contemplated by the parties, and was a circumstance warranting the inclusion of this son in the support order.
3. The purpose of a support order is the welfare of the child and not punishment of the father.
4. A support order must be fair and not confiscatory in amount, being intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father, and the condition and station in life of the family.
5. In this action for the support of four children, in which it appeared that the court below determined that defendant's annual income was $10,905; that the expense of maintaining the four children, according to their mother's testimony, was $121 per week, to which was added $134 per month to cover the school expenses of the son in business school; and that the court below entered an order requiring defendant to pay the sum of $600 per month for the support of the children; it was Held that (a) the asserted needs of the children had to be equated with the father's ability to pay; (b) the order imposed an unreasonable burden upon the father; and (c) the order in the instant case should be reduced to $425 per month.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 11, Oct. T., 1963, from order of Court of Quarter Sessions of Chester County, Jan. T., 1960, No. 49, in case of Commonwealth of Pennsylvania v. G. Rex Camp, Jr. Order, as modified, affirmed.
Proceeding upon petition of wife for increase in order of support for minor children. Before GAWTHROP, P.J.
Order entered directing defendant to pay increased amount for support of minor children. Defendant appealed.
Francis X. Hope, Jr., with him Alan B. Portnoff, for appellant.
Norman J. Pine, Assistant District Attorney, with him Samuel J. Halpren, District Attorney, for Commonwealth, appellee.
Argued June 10, 1963.
This is an appeal by G. Rex Camp, Jr. from an order of the Court of Quarter Sessions of Chester County, entered October 31, 1962, requiring him to pay the sum of $600.00 per month for the support of four children. The contentions advanced are (1) that the lower court erred "as a matter of law" in holding that appellant's son, G. Rex Camp, III, who was then aged eighteen years and had finished high school, should be included in the order; and (2) that the amount of the order was an abuse of discretion.
The instant proceeding had its inception in a petition filed by appellant's former wife on August 8, 1962, requesting an increase in an existing support order of $70.00 per week. Appellant and his wife, now divorced, had four children, G. Rex, III, born April 12, 1944; James, born February 9, 1947; DeMaree, born March 8, 1948; and Emily, born April 19, 1949. Prior to the opening of the school year in the fall of 1962, appellant took G. Rex Camp, III, who had graduated from high school as "no more than an average student", to the Goldey Beacom School in Wilmington, Delaware, enrolled him in the two-year business course, paid the registration fee, and arranged for the boy to live at the Y.M.C.A. Appellant did not pay for tuition, books, or room and board, and his former wife was required to defray these expenses from her own funds. The court below concluded that appellant was "of sufficient ability to support a minor son attending business school beyond the high school level", and that it was "clearly within his own, his former wife's, and his son's contemplation that he would do so".
I. There is no question that a father's obligation to support his children includes the duty to provide a public school education. See Commonwealth v. Wingert, 173 Pa. Super. 613, 98 A.2d 203. A recurring problem has arisen concerning a father's duty to furnish support for a child pursuing his education beyond high school. In Commonwealth ex rel. Martin v. Martin, 196 Pa. Super. 355, 175 A.2d 138, the law was summarized as follows: "In the absence of an express contract, and unless the circumstances warrant it, a parent is not liable for the support of a child attending college . . . On the other hand, where there is an agreement to support, and it is within the contemplation of the parties, a father may be liable to support and furnish his child with a college education". In Commonwealth ex rel. Howell v. Howell, 198 Pa. Super. 396, 181 A.2d 903, we held that the existence of a child's educational endowment policy indicated that higher education was within the contemplation of the parties, and was a circumstance warranting the action of the court below in directing that the father should pay college tuition. Similarly, in the case at bar, we are fully in accord with the position of President Judge GAWTHROP that the conduct of this appellant in connection with his son's enrollment in business school demonstrated that higher education was contemplated, and was a circumstance warranting the inclusion of the son in the support order.
It should be further noted that, in the most recent opinion of this court on the subject, it is expressly stated as a matter of law that, under appropriate circumstances, an order may be entered against a father for the support of his child attending college. "We believe that the law of this Commonwealth requires a father, under certain circumstances, to support a child while attending college": Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182. The opinion in the Ulmer case had not been handed down at the time the instant proceeding was decided by the lower court. Under the rule announced therein, it is clear that appellant's first contention must be rejected.
II. Appellant's second contention gives us more concern. His principal source of income is the Campex Corporation, a real estate and insurance business which he owns and controls. It is unnecessary to burden this opinion with a detailed financial analysis. The court below determined that appellant's annual income was $10,905.00. As calculated in appellant's brief, the figure should be $7,905.00. The expense of maintaining the four children, according to their mother's testimony, is $121.00 per week, to which was added $134.00 per month to cover the school expenses of G. Rex Camp, III. The court below found that the total sum needed was "at least $618.00 per month".
We are all of the opinion that the amount of the order should be reduced. The asserted needs of the children must be equated with the father's ability to pay. Even if we assume an income of $10,905.00, as found by the court below, an order of $7,200.00 per year appears to us to impose an unreasonable burden. The purpose of a support order is the welfare of the child and not punishment of the father. It must be fair and not confiscatory in amount, being intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father, and the condition and station in life of the family: Commonwealth ex rel. Warner v. Warner, 194 Pa. Super. 496, 168 A.2d 755. It is our view that the order in the instant case should be reduced to $425.00 per month.
As thus modified, the order of the court below is affirmed.