Noreen K. GARNEY, Appellant, v. ESTATE OF Leslie HAIN.
Superior Court of Pennsylvania.
Filed Jan. 20, 1995.
Argued Sept. 13, 1994.
653 A.2d 21
Allen E. Hench, Newport, for appellee.
Bеfore ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
Appellant Noreen K. Garney appeals from an order dismissing her complaint for support filed against the estate of Leslie Hain, the deceased father оf her three children. The sole issue raised for our consideration is whether the estate of a deceased parent, under Pennsylvania law, may be required to provide child support in the absеnce of a support order or contractual agreement. After careful consideration of the legal issue presented, we affirm the order of the trial court.
The trial court‘s statemеnt of facts, as stipulated by the parties, is adopted for purposes of our review. Opinion (Oler, J.), filed 1/24/94, at 1-2. We note that the parties were divorced in 1984. Leslie Hain (hereinafter “decedent“) remarried in 1985 and died testate in 1992. No court order for child support or contractual agreement to provide support for the decedent‘s three minor children existed at the time of his death. Aрpellant argues that in spite of a lack of statutory authority, this Court should impose a duty of support upon the estate as a matter of public policy.
Our standard of review in child support mattеrs is whether the trial court abused its discretion by misapplying or overriding existing law, or exercised its judgment in a way which is manifestly unreasonable, or evidences partiality, bias, or ill-will. Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 595, 627 A.2d 1210, 1213 (1993). A review of the record in this cаse discloses no abuse of discretion on the part of the trial court. The trial court is correct in observing, as appellant concedes, that the legislature has declined to imposе a duty of support on the estate of a divorced parent, and there is no case law to be cited in support of such a duty. Further, we agree with the trial court that it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt. The decedent disposed of his property as he wished prior to his death and this disposition is not challenged herein; absent legislative authority to do so, we decline to rewrite the decedent‘s will. In re Agostini‘s Estate, 311 Pa.Super. 233,
As we hаve determined that the trial court correctly applied the law and the record discloses no evidence of partiality, ill-will, or bias, we affirm the trial court‘s order dismissing appellant‘s petition for support.
Order affirmed.
DEL SOLE, J., files a dissenting opinion.
DEL SOLE, Judge, dissenting:
I dissent. A parent‘s duty to support a minor child is absolute and, therefore, I would hold that where the assets of a deceased parent‘s estate could provide support for thе deceased‘s minor child, even in the absence of any agreement, order or bequest, the funds from the estate should, if necessary, be made available to support the child.
In the present сase, following their parents divorce, Appellant‘s three children resided with the deceased and his second wife until the time of death. After their father died, their step mother declined to care for these children. Even though the decedent was the children‘s custodial parent, he failed to provide for them in his will. Instead, the will directed that his second wife receive his entire estate and only in the event that she die within 60 days of his death, would his estate pass to his children. Appellant, the former wife and natural mother of the children, filed for support against the deceased father‘s estate. The trial court dismissed Appellant‘s Complaint and this appeal followed.
In 1956, our supreme court acknowledged that “... a father, in the absence of a contract, has no legal obligation tо support his children after his death, and is under no legal obligation to leave his children anything by will.” In re Fessman Estate, 386 Pa. 447, 452, 126 A.2d 676, 678 (1956). As divorce has become more prevalent, however, the importance of our child support lаws has increased and caused them to undergo significant change. Initially, there was a presumption that the duty to support a minor child rested solely with
The Majority holds that, “... the legislature has declined to impose a duty of support on the estate of a divorced parent, and there is no case law to be cited in support of such a duty. Further, ... it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt.” (Majority Opinion at pagе 43).
I cannot adopt the Majority‘s position because I believe that the legislature‘s actions must be viewed as a whole. It is evident that the legislature has increasingly since 1985 expressed a policy designed to provide support for minor children, and enforce that right.
Numerous laws have been enacted to assure that a parent meets his or her child support obligation. For instancе, a parent who willfully fails to make support payments can be held in civil contempt and ordered to serve a term of imprisonment of up to six months, receive probation of up to six months аnd pay a fine of $500.00.
Accordingly, while the legislature has not specifically stated that a deceased parent‘s estate will be held rеsponsible for providing support for that parent‘s minor child, in light of important societal changes and corresponding changes made in child support laws, we can infer that the legislature intends
Accordingly, I dissent from the position espoused in the Majority Opinion which permits a deceased parent‘s estate to escape responsibility for the support of the deceased‘s surviving minor children.