Summary
In Gilmore, a father obligated to pay support for his minor son, attempted to terminate support upon his son reaching the age of 16. The father argued that state law only mandated attendance at school until age 16 and that sufficient employment opportunities existed within the community for his son to obtain a job to support himself.
Summary of this case from Blue v. BlueOpinion
October 7, 1929.
October 30, 1929.
Parent and Child — Support order — Revocation of — Education — Minor attaining age of sixteen — Effect.
In an appeal from an order of support for a minor, the evidence disclosed that the minor was over the age of sixteen years; that he was physically and mentally able to engage in a profitable employment at a supporting wage, and that there was available employment in the community. The minor had completed the term of school required by the attendance laws, but desired to finish his education in the public schools. In the proceeding neither the reasonableness of the amount of the order, nor the ability of the defendant to pay, were questioned. Under such circumstances the order of support will be affirmed.
A court may require a father to give his minor children such education, beyond the minimum required by law, in the public school as reasonably accords with the father's financial ability and position in life, and the child's ability, progress and prospects.
Appeal No. 315, October T., 1929, by defendant from order of Q.S., Berks County, September Sessions, 1920, No. 274, in the case of Commonwealth of Pennsylvania v. Harry E. Gilmore.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Petition for revocation of an order of support. Before SCHAEFFER, P.J.
The facts are stated in the following opinion of the court below:
In 1920 this court made on order, under the Act of 1867, against the defendant for the support of his wife and minor son. In 1922 the wife was granted an absolute divorce and thereupon she entered into an agreement in writing to the effect that the defendant should pay the sum of $5.00 per week for the support of the child "for the duration of the term for which he is required to support said minor child." In September, 1928, the defendant petitioned the court for the absolute revocation of the order on the ground that the son had, on August 20, 1928, attained the age of 16 years. Thereupon, in lieu of a hearing, the Commonwealth and the defendant filed a stipulation of the facts in writing, setting forth that the boy had arrived at the age of 16 years, was of normal health, mentally and physically, was a pupil of the Reading Senior High School and that it was the desire of the mother, with whom the son has lived and is living, and of the son himself that the latter continue his school work until graduation. After argument, we filed an opinion revoking the order. Upon appeal, the Superior Court reversed this judgment and remitted the record for a rehearing, 95 Pa. Super. 557.
The appellate court has now determined that, before an order for the support of a minor child who has reached the age of 16 years, may be revoked it must appear from evidence either that said minor is earning in gainful employment a supporting wage, or that he is physically and mentally able to engage in profitable employment and also that employment is actually available for the minor in the community at a supporting wage. And in the latter case, namely that in which the minor, though physically and mentally qualified to support himself at work which is also presently available, continues to go to school, beyond the period made compulsory by the school attendance law, the Superior Court intimates that the right of the father to obtain a revocation of the order of support is not absolute but is dependent upon a consideration of the benefits to be received by the minor and by the State through the further education of the minor.
This decision by the Superior Court has put an end to a practice which has uniformly been followed without challenge by the court of this county throughout the period covered by the memory of our oldest practitioners. Our court has always revoked support orders when the child reached the age of 16 years and was conceded to be normal mentally and physically.
Upon the rehearing, the Commonwealth called a person who is in charge of the classified advertising of a representative daily paper who testified that, although there were occasional advertisements for 16-year-old boys, the supply of boys of that age in this community was greater than the demand for their services. A civil engineer told of the opportunities in the engineering field in this community for boys who had graduated from High School. The boy testified as to his work out of school, his progress in school, and of his desire to become a civil engineer. The boy's mother stated that the cost of board, lodging and laundry in the neighborhood for a boy of 16 or 17 years is $10 per week.
The defendant called five witnesses connected with different industries. One said that there were always openings for good boys at his factory at wages starting at $12 to $14, and rapidly rising to $27.50 per week. An automobile body repairman employs healthy, normal boys at a wage of $11 per week which is raised to $20 within a year. The foreman of a hosiery plant can use good boys at any time at wages starting at $13.20 per week and going to $17.30 within a month. A general contracting firm constantly employs boys of 16 as assistant timekeepers at a wage of $22 per week. A pretzel baker, employing about 125 people, would employ a boy of the type here in question at a wage beginning at $14 or $16 per week and going to $30 per week.
From the testimony we can have no difficulty in finding that the minor here in question can obtain employment in the community in which he lives at a wage which is sufficient for his own support.
But this, in our opinion founded upon the reference to the education of minors in the decision of the Superior Court, is not decisive in this case. The boy here is now 17 and is a student in the class that will graduate in February, 1931, from the Reading High School. He and his mother, to whom the defendant has, by his separation from them, entrusted the guardianship of the boy, wish that he continue in school until graduation. If he progress with his class, he will be under 19 years of age at the time of his graduation. There is no evidence that the mother or the minor are possessed of any property or income from which the boy's maintenance might be provided during that period. The only possible resource, in addition to what the minor may earn after school hours and on Saturdays and holidays, to which the boy can turn for his support, is the earnings of his father. The latter has no property but he is employed at a wage of $105 per month. Neither the reasonableness of the amount of the present order nor the ability of the father to pay said order is here in question. The petition for revocation merely asserts that the child has attained the age of 16 years and is able to support itself and raises the sole question for determination.
When this case was before them, the Superior Court found it unnecessary to lay down or to discuss any general rule governing the liability of a father to provide for the education of his normal, minor children after they had completed the term in school required by the attendance laws. But the consideration of this question is now squarely before us.
From the cases appended to the Superior Court's reference to education of minors it would appear that in general the law has always recognized a duty on the part of a father to provide some education as well as mere maintenance and support for his minor children. The earliest case in Pennsylvania, to which our attention has been called, is In re Harland's Accounts, 5 Rawle 323 (1835). There a father as the trustee of his minor son's estate, was not, in the settlement of his accounts, permitted to take credit for moneys expended by him for the education of the son, for the reason, as stated by Chief Justice GIBSON, that the father admitted his ability to furnish such moneys. This follows the principle laid down in the various cases cited by counsel in the Harland case. Thus in Mundy v. Earl Howe, 4 Bro. C.C. 224 (1793), a case involving the question of whether the income of a legacy bequeathed to a minor child whose father was still living, could be applied towards the maintenance of such child, the Lord Chancellor says: "It is perfectly clear from the cases that where the fund is given as a bounty, notwithstanding a provision for maintenance (in the bequest), the father, if of ability, must maintain the child." To the same effect is Butler v. Freeman, 3 Atk. 58. So in Hughes v. Hughes, 1 Bro. C.C. 387, where there was a legacy to children by a grandfather for their "maintenance and education," the petition of the father for an allowance out of the legacy was referred, according to what is called the unvarying practice to the master to inquire whether the parents (father) are of ability to maintain the children and, if not, then to report what would be a proper maintenance. In other words, a bequest expressly for the maintenance of minors did not relieve the father of his primary responsibility, if he were possessed of sufficient means. To the same effect is Dawes v. Howard, 4 Mass. 97 (1808), where the Chief Justice stated that the father of minor children having property of their own is notwithstanding bound to support them, if of ability; but it is otherwise with the mother. Where the father has died and the mother has remarried, an allowance from the income of the children's own fortune was awarded, and the Lord Commissioner inquired: "Ought not the court see to the application of part (of the income) to their education?" Billingsly v. Critchet, 1 Bro. C.C. 268.
The cases show the tendency to include within the term "support and maintenance" the idea of education. The law, apart from statute has come to recognize that paternal duty involves, in addition to provision for mere physical needs, such instruction and education as may be necessary to fit the child reasonably to support itself and to be an element of strength, rather than one of weakness, in the social fabric of the state. Thus in Fitler v. Fitler, 33 Pa. 50, Mr. Justice WOODWARD said by way of obiter, it is true: "There is no duty more clear and imperative than that of a father to support his children during their minority. And though we have no statute enforcing it, except in case of pauperism, I hold it to be a legal obligation. He is absolutely bound to provide reasonably for their maintenance and education, even though they have property of their own; and if he neglect this duty, he may be sued for necessaries furnished and schooling given, under just and reasonable circumstances. Chancellor KENT'S observation, 2 Com. 196, is not more elegant than just — that a parent who sends his son into the world uneducated and without skill in any art or science, does a great injury to mankind, as well as to his own family, for he defrauds the community of a useful citizen, and bequeaths to it a nuisance." In Middlebury College v. Chandler, 16 Vt. 683 (1844), it was said: "The practical meaning of the term (necessaries) has always been in some measure relative, having reference as well to what may be termed conventional necessities of others in the same walk of life with the infant as to his own pecuniary condition and other circumstances. A good common school education, at the least is now fully recognized as one of the necessaries for an infant. Without it he would lack an acquisition which would be common among his associates, he would suffer in his subsequent influence and usefulness in society and he would ever be liable to suffer in his transaction of business. Such an education is moreover essential to the intelligent discharge of civil, political, and religious duties." In Kilgore v. Rich, 83 Me. 305, 22 A. 176, necessaries for which the father was held liable included the son's board bill while attending school. In Cory v. Cook, 24 R.I. 421, 53 A. 315, the term was held to include "all of those things which are reasonably necessary to the comfort, health and education of the child suitable to his degree and station." But in a number of cases the term was held not to include a collegiate or professional education. In the matter of Ryder, 11 Paige 185; Turner v. Gaither, 83 N.C. 357; Streitwolf v. Streitwolf, 58 N.J. Eq. 570, 43 A. 904. It is only under "favorable circumstances" that a collegiate education is one of the necessaries: Peacock v. Linton, 22 R.I. 328; 47 A. 887. "Some kind of education has been included from early times within the class of necessaries for which an infant may contract. The early cases, however, seem to have confined this to elementary or vocational education and even in the later cases, a college, university or professional education has generally been excluded; though it has been judicially suggested that it might be allowed in a case where the infant's ability and prospects justified it": 14 R.C.L. See. 35, p. 258. "That education, to an extent justified by the infant's means, ability and prospects, is a `necessary' for which the infant may bind himself by contract has been stated ...... (supra). But the father unless his paternal authority has been taken away by the courts, is the one to decide the extent of the education to be given to the child, beyond what is provided by the school system of the state; and it could only be in a very extreme and exceptional case that the father would be held liable to pay for an education furnished to his child by others without his consent": 20 R.C.L. Sec. 32, p. 626. "It is well established that it is the duty of parents of minor children to support and maintain them and the duty to educate them is also established....... Such duty is a continuing one....... While some cases have held that the duty to support and educate is merely a moral obligation, not enforceable in law independently of statute, the better view undoubtedly is that the obligation is a legal, as well as a moral, one": 46 C.J. 1256.
It must thus appear that in this city and generation the law does recognize a legal duty upon the part of every father to give to his minor children an education, beyond the minimum required by law, in the public schools provided by the Commonwealth which reasonably accords to the father's financial ability and position in life and the child's ability, progress and prospects. In the ordinary case, especially where the child is living with the father, the actual extent of that education must be left to the control and determination of the father, whose honest judgment in the matter should never be lightly disregarded and overruled. But the utmost to which the cases thus far considered go, is to recognize a civil liability to that extent upon the father.
The proceeding before us is under the Act of April 13, 1867, P.L. 78, which provides for the arrest at the instance of the wife or children of a husband or father who has separated himself from, or neglected to maintain his wife or children, and authorizes the court of quarter sessions to order such husband or father "to pay such sum as said court shall think reasonable and proper, for the comfortable support and maintenance of said wife or children." The proceeding under this act in its nature is quasi-criminal. It contemplates an arrangement for future support, whereas in the cases we have considered, save in Streitwolf v. Streitwolf, supra, and In the matter of Ryder, supra, the question involved the liability of the parent for sums that had accrued in the past. In this county, as we have stated, it has been our invariable practice under this statute to revoke all orders for support of normal children upon their reaching the age of 16 years. But by inquiry among the judges of the courts of many other counties in the State we have learned that their practice is different. In general the usual practice in this Commonwealth seems to be to continue the order during minority or until the child is in fact at work and self-supporting, subject, of course, to a prior revocation where the child though in school, is wasting his time or is incapable of further progress. In other words, the courts do not, in the ordinary case, interfere with the child's wish to get a common-school education but require the father, if able, to provide for the child during such time, having regard, however, to the child's ability and progress.
We know of no reported case dealing with this question in our State.
The old practice in this county may be said, within its scope, to be in accord with the general practice. It was never our practice to revoke an order merely because the child, 14 years of age had attained the seventh grade, although under the compulsory school attendance law such child might go to work. Accordingly in many cases, under our practice, the fathers were compelled to support children under the age of 16 years who nevertheless were legally and perhaps actually able to support themselves.
Marriage is not a merely private institution but is one in which the State has a real and definite interest. By its laws the State supervises and controls the formation of the actual contract of marriage, defines the status, rights and obligations of the parties thereto, regulates the methods of dissolution of the marriage bond, and declares the rights and duties of the parties, or surviving party, after the termination of the marriage state. The State's interest in marriage rests upon a sound public policy, which is founded not only upon the regulation of the morals of the people but more especially upon the State's basic concern in the rearing of children. In a republic where every adult citizen has a share in public affairs, it becomes essential for the preservation of the State and the happiness of the people, that the citizens be acquainted with public affairs and be intelligent and to that end be educated to the highest extent possible. This being so it is highly proper that the law should, in the matter of the support of minors, adopt such rule as will work to the benefit of the State and the public rather than the convenience of a particular individual. The general benefit to be obtained by continuing an order for the support of a minor child to the end that such child may receive a common school education greatly outweighs that derived from the relief of the father, when able, from the payment of the order. Upon principle, therefore, it would seem that we are warranted in adopting a rule, similar to that in force in other counties of this State, and in refusing to revoke an order for the support of a minor son who, although upwards of 16 years of age, is genuinely endeavoring to get an education in our public schools, where the father is of sufficient ability to continue the payment of said order.
And now, to wit: August 12, 1929, the petition for the revocation of the order is dismissed.
The court dismissed the petition. Defendant appealed.
Error assigned was the order of the court.
Ralph C. Body, and with him Stevens Lee, for appellant.
John W. Speicher, Assistant District Attorney, and with him Oliver M. Wolff, District Attorney, and Harvey F. Heinly, for appellee.
Argued October 7, 1929.
The judgment is affirmed on the opinion of the court below.