Nancy PHAROAH, Individually and as Guardian for Anthony Lapes, a Minor v. George A. LAPES, Appellant (Two Cases)
Superior Court of Pennsylvania
Filed March 1, 1990
571 A.2d 1070
Argued Sept. 27, 1989.
Trial court opinion, at 14. The court states further that it “was fully aware of the limited weight to be given” to the witness‘s opinion that appellant had falsified the handwriting exemplar. Id. Where, as in this case, the weight of competent evidence clearly supports the verdict, we decline appellant‘s invitation to find error. Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987).
Judgment of sentence affirmed.
Susan A. Docktor, Dillsburg, for appellee.
BECK, Judge:
Nancy Pharoah (formerly Nancy Lapes and hereinafter “mother“), filed a petition seeking contribution from George Lapes, the father, for the college education and support of their son Anthony. Since 1981 father has been paying child support for Anthony and a younger child Andrea pursuant to a marital settlement agreement. The agreement contemplated college education for both children.1 Rather than fixing a specified contribution or constructing a formula by which to do so, the agreement acknowledged each party‘s commitment to the post-secondary education of the children and provided that each party would contribute to that education commensurate with his or her then ability to pay. The agreement also provided that if the parties disagreed about the contribution of each parent, either one of them could seek a judicial resolution of the dispute. Such a dispute arose and mother brought the instant support action. The father appeals the order of the support court.
A brief description of the family background is helpful to an understanding of the issues in the case. Appellant and appellee were divorced in 1981 after a sixteen year marriage. Both parties have remarried. The father lives in York, Pennsylvania with his wife and their young son. He is a psychiatrist earning approximately $200,000 a year. The mother lives in Georgia with Anthony and Andrea and her husband. The mother is a former nurse who left her career in favor of full-time parenting. The children maintain a cordial relationship with their natural father and paternal grandparents through correspondence, telephone
The focus of this dispute is Anthony‘s education. He was an outstanding student in high school. He was valedictorian and graduated number one in his class. He received numerous academic and athletic awards both nationally and at home.3 He excelled in math, history and languages. His athletic achievements included football, basketball and track. As a result of his remarkable record, Anthony was in the enviable position of having to choose between two universities, Georgia Institute of Technology and Massachusetts Institute of Technology (hereinafter Georgia Tech and M.I.T.). Although Georgia Tech offered him a full tuition scholarship, he chose to attend M.I.T. He had formed an ambition to attend M.I.T. early in his high school career.4 Anthony explained that he consulted with his parents during the course of high school about his college plans. Since no one raised any objection to his applying to M.I.T., he concluded that cost would not be a “major factor” in deciding whether or not to attend. In addition to being an outstanding institution of higher education, M.I.T. also offered Anthony an opportunity to live in an entirely different geographical area.
The trial judge held a three day hearing at which she heard extensive testimony from Anthony, his father and his
On appeal appellant asserts that: 1) the trial court abused its discretion by obligating appellant to pay the additional costs of tuition at M.I.T. because Georgia Tech had offered Anthony a tuition-free education; 2) the trial court abused its discretion in calculating Anthony‘s reasonable living expenses; and 3) the trial court abused its discretion by underestimating the available income of the mother in determining her share of the college support obligation. For the reasons which follow, we affirm.
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
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. In this regard we note that appellant does not argue that he lacks the financial ability to contribute the ordered amount towards Anthony‘s college education, nor could he reasonably do so. The trial court found that appellant‘s annual gross earned income for 1986 and 1987 was $202,358.00 and $190,756.00 respectively and that his reasonable living expenses were approximately $5000.00 per month.5 Appellant does not dispute the accuracy of these findings nor does he argue that payment of the court ordered college expenses will work any hardship on him, much less “undue hardship“. Rather the gravamen of appellant‘s argument is that it was “unreasonable” for the court to order him to contribute toward‘s Anthony‘s M.I.T. education when Anthony could have received an education elsewhere for less
It is the father‘s contention that his responsibility is limited to an education that is “proper“, “reasonable” or “adequate“. Therefore, he argues that since an education at Georgia Tech would have been “adequate“, he should not have to pay the added expense of sending Anthony to M.I.T. What appellant overlooks in his reasoning is that here, as in any support matter, what is “reasonable” depends upon an assessment of all the circumstances in the case including the intellectual and scholastic achievements and aspirations of the child, the financial resources of the parents, the parties’ station in life and customary standard of living and the child‘s relationship with the parent from whom he seeks support. Moreover, and most importantly, the assessment of what constitutes reasonable support in a given case is left to the sound discretion of the trial court.
The principle that the fashioning of an equitable college support order is a matter best handled by the trial court was emphasized in Commonwealth ex rel. Larsen v. Larsen, supra, a case upon which appellant mistakenly relies. At issue in Larsen was “the extent to which a father is obliged ... to support a child attending an expensive private college when an adequate but less expensive education is available elsewhere.” 234 A.2d at 20. The court in Larsen refused to establish an inflexible rule but instead recognized that “[t]he determination of whether such an additional burden should be imposed on the father is a matter for the trial court“. Id. (emphasis added) Further, this court noted:
[T]he court must first ascertain what advantages are offered by the more expensive college in relation to the child‘s individual needs, aptitude, ability, and the child‘s anticipated vocation. It must then weigh these advantages against the increased hardship that would be imposed on the father to determine whether the additional expense is reasonable under the circumstances. We realize that a judge who sees and hears the witnesses in a
case such as this is in a better position than this Court to decide this problem and our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion.
Id. at 21. (emphasis added).
In Larsen, the father from whom increased college support payments were sought was a medical doctor who had almost reached retirement age, had a modest income, a fraction of appellant‘s in the instant case and, therefore, there was a risk that the increased payments might jeopardize his financial security. As has already been noted, the same cannot be said for the appellant in this case whose financial assets are undisputedly substantial.6 More importantly, the child in Larsen was an average student and the more expensive college he sought to attend was on a par with the state-run university. In contrast, in the instant case, the record amply supports the trial court‘s conclusion that Anthony “deserved” the best education possible based upon his considerable academic accomplishments.7 The record further establishes that Anthony‘s decision to attend M.I.T. was based on the reasonable conclusion that it would represent a superior educational experience. This conclusion was reached by assessing the school‘s selectivity, its
Appellant‘s next contention is that the trial court abused its discretion by miscalculating the reasonable living expenses incurred by Anthony at M.I.T. This argument is without merit. The trial court heard ample and detailed testimony from both Anthony and his mother about the amount of money it was necessary for Anthony to spend during his first two years at M.I.T. The record supports the fact that the trial judge tailored the amount of support to Anthony‘s realistic needs.
As a separate claim of error, appellant contends that the trial court abused its discretion in determining the reasonable annual transportation expenses for Anthony. The record reveals that Anthony kept a 1973 Volkswagon Rabbit at M.I.T. for his use during the school year. Anthony testified that this vehicle belongs to his stepfather and was given to him for his use at school. He also explained that the car “won‘t make it” on a trip between Boston and Georgia and therefore he leaves it at school to use for short trips and to run errands. Anthony further testified that when he is in Georgia he uses another family car, which other family members also use. Anthony‘s mother explained that the insurance expense for Anthony covers him
The reasonable use to which Anthony put these two vehicles was thoroughly explored in the record and the availability of two cars under these circumstances is not inappropriate for a college-age student whose school is a thousand miles from home. Similarly, the record supports the trial court‘s finding that it was proper to include air transportation between Boston and Georgia at the start and end of the school year and for vacations as a reasonable and necessary living expense. Appellant suggests that it would be more reasonable to expect Anthony to drive to and from Georgia and Massachusetts despite unrefuted testimony from both Anthony and his mother that safety considerations dictate against it. We conclude appellant‘s allegation of abuse of discretion by the trial court is meritless.
Finally, appellant argues that the trial court failed to calculate correctly the mother‘s contribution towards Anthony‘s college education. However, the record does not support this claim. The trial court attributed $20,000.00 of annual earning capacity to the mother although, as a homemaker and full-time parent, she had no actual income. Furthermore, the trial court allocated this entire amount as available to meet Anthony‘s needs, because the trial court reasoned that the mother‘s second husband supported her completely.9 All parties were subject to rigorous scrutiny through direct and cross examination regarding their incomes and expenditures. The trial court fairly assessed
Order affirmed.
JOHNSON, J., files concurring opinion.
CIRILLO, President Judge, files dissenting opinion.
JOHNSON, Judge, concurring:
I agree with my colleague, Judge Beck, that the Honorable Sheryl Ann Dorney has not committed any abuse of discretion in fashioning an equitable college support order. Because our scope of review is, quite properly, a narrow one, I am reluctant to join Judge Beck‘s conclusion that the record before us establishes that attendance at the Massachusetts Institute of Technology (M.I.T.) by Anthony Lapes will result in a “superior educational experience” than if he were to attend the Georgia Institute of Technology (Georgia Tech).
As a reviewing court, we need not independently conclude that Anthony is “deserving” of what he believes to be “the best education possible” in order to affirm the trial court. Where we can confirm that the support award is within the financial means of the parent, which clearly is the case here, and where the trial judge has reasonably applied the principles regarding a parent‘s obligation for support, our
Judge Dorney has carefully applied the law to the facts in this case. I, therefore, agree that the order of August 5, 1988 must be affirmed.
CIRILLO, President Judge, dissenting:
Because I feel that under the circumstances of this case George A. Lapes (“father“) should not be forced to finance his son Anthony‘s education at the Massachusetts Institute of Technology (“MIT“), I must respectfully dissent.
As the majority notes, Anthony was in the enviable position of having to decide between attending MIT or Georgia Institute of Technology (“Georgia Tech“). Confronted with this decision, Anthony consulted a number of people, including his father. During this brief consultation, Anthony informed his father that he was considering attending MIT, and since his father did not object to the cost of MIT, Anthony concluded that cost was not a major factor. What Anthony did not convey to his father was that Georgia Tech had offered him a full tuition scholarship. Anthony ultimately chose to attend MIT and the instant dispute arose.
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 parents to contribute to that effort without undue hardship.
Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854, 858 (1989) (citations omitted). The above elements do not exist in a vacuum; when determining an award for college expenses it is necessary for the trial court to weigh and evaluate a number of factors peculiar to each case which are outside
Instantly, it is undisputed that Anthony has the ability and desire to attend MIT. Moreover, the father does not contest his ability to finance Anthony‘s education. The father does, however, argue that he should not be financially responsible for Anthony‘s unilateral decision to attend MIT when Anthony did not discuss the cost of college with him, and more significantly, withheld from the father the fact that he was offered a four-year full tuition scholarship at Georgia Tech.2 If we were confined to the two tier test, our discussion would be at an end since Anthony has the academic proficiency to attend MIT and the father has the financial ability to contribute to that effort without undue hardship. Milne, supra. I refuse, however, to blindly apply this two part analysis.
Courts are traditionally, and for good reason, reluctant to cross the threshold of the family dwelling, for so far as they venture beyond that threshold, they have intruded.... The view that courts should not interfere in family relations is a fine approach, unless by taking it, the court allows greater evil than that which it attempts to prevent.
The objective of the court [in] extending its protection to adult children of divorced parents is to ensure that they are not unjustly deprived of opportunities they would otherwise have had, had their parents not divorced. The role of the courts in this endeavor should be one of substituting its judgment, as nearly as possible,
Milne, 383 Pa.Super. at 186-87, 556 A.2d at 859-860 (footnotes omitted, emphasis added). Essentially, the court is required to assume the responsibility of an intact family. Milne, 383 Pa.Super. at 188, 556 A.2d at 861. When a family is intact, there is a discussion of the financial ramifications of an adult child‘s educational preference. Milne, 383 Pa.Super. at 187, 556 A.2d at 860. If an intact family decides, for whatever reason, that they will not bear the burden of sending the adult child to the preferred, albeit more expensive, institution and that child still desires to attend college, he or she is confronted with two alternatives. The child can attend the more costly institution and finance the education on his or her own, or the child can defer to the parents’ decision and enroll in the less expensive college with their financial assistance. What the child of the intact family cannot do is attend the more costly college and subsequently sue his or her parents for the resulting expenses.
When the parents divorce, the mutual discussion of significant family matters may not take place. Often, the non-custodial parent who sees the child only periodically has little input on important decisions. As a result of the divorce and the breakdown of the once-intact family unit with its inherent channels of communication, the welfare of the children becomes the responsibility of the courts. Id. Our goal, as we are called upon to “usurp the natural functions of the family unit[,] ... [is to] assume the responsibility for the decisions that would be normally made entirely internally in a family if it were still intact.” Milne, 383 Pa.Super. at 189, 556 A.2d at 860-861.
In the instant case, the majority notes that the relationship between father and son was “undeniably warm.” Consequently, the father appeared to hold no animosity for Anthony and had no motivation to act vindictively by summarily rejecting Anthony‘s decision to attend MIT. When Anthony briefly consulted his father concerning his educational choices he did not inform his father that Georgia Tech had offered him a full tuition scholarship. The father did not discover that Anthony had been offered a full tuition scholarship until these proceedings were initiated. Apparently, the father objected to the cost of MIT before he was aware of the scholarship opportunity presented at Georgia Tech. Further, when one factors the tuition scholarship into the decision, the price of MIT becomes approximately $12,000.00 more than the cost of Georgia Tech, a financial discrepancy that may warrant even the most munificent of parents to refuse to finance a MIT education.4
If Anthony‘s family were intact, there would have been a mutual discussion of Anthony‘s educational opportunities.
I do not condone or condemn Mr. Lapes’ reluctance to pay for a MIT education. I do believe, however, that he would have arrived at this decision even if he and Anthony‘s mother were not divorced. I reach this conclusion based primarily upon two factors: 1) the father‘s relationship with Anthony was warm, and there is no evidence that he harbored any animosity toward Anthony, either before or after Anthony‘s decision to attend MIT, and 2) although it was understood that Anthony would attend college, the father had objected to the high cost of a MIT education even before he discovered that Anthony had been offered a full tuition scholarship to Georgia Tech.
The father‘s decision not to finance Anthony‘s MIT education seems to have been purely an economic one, not done out of spite or bitterness. Therefore, under the circumstances of this case, we are not called upon to coerce a father to do something that he would have done willingly “but for” the deterioration of his marital relationship. Chesonis, 372 Pa.Super. at 113, 538 A.2d at 1379 (Cirillo, P.J., dissenting); see also Parental Support Obligations, 16 Suffolk U.L.Rev. 755, 771. On the contrary, what we are asked to do, and what the majority does, is bestow upon Anthony, at the expense of his father, a benefit he would not have been afforded if his parents had remained married. Accordingly, I respectfully dissent.