Horst v. Horst

TAMILIA, Judge:

This is an appeal from the Order of the trial court which confirmed the temporary Order of a hearing officer fixing a support amount of $205 per week for two minor children, ages four and seven. The primary issue posed to the trial court and presented here on appeal is whether appellant’s contributions toward the college education of his son by a prior marriage constitutes a relevant factor which should have been considered by the hearing officer or court in determining appellant’s child support obligation to the parties’ two minor children.

According to the trial court Opinion, “[s]ubject to a preserved relevancy objection, the Defendant introduced testimony: 1) that John F. Horst, an eighteen year old, was able and willing to pursue his college courses in architectural engineering at Drexel University; 2) that Defendant personally contributed over $5,500.00 on behalf of son through either direct payments to Drexel, bi-weekly allowance checks of $100 and direct payments for sundry requirements; ____” (Slip Op., Uhler, J., 6/1/90, p. 16.) The parties dispute whether or not an agreement existed during the ten year marriage as to post-high school education for John.¹

Appellant maintains that pursuant to the new Statewide Guidelines promulgated by the Supreme Court, Pa.R.C.P. 1910.16-1 to 1910.16-5 (effective 9/30/89), his payment of college training for his older child is a special circumstance entitling him to a downward adjustment of the amount he is obligated to pay under the support guidelines. We agree with the trial court that the college support provided by the father for the older child is not a relevant consideration in determining support for the minor children and the guidelines may not be adjusted to reflect those payments.

This issue is not novel to the court either before or since the advent of guidelines. Simply stated, the law in Pennsylvania since Ulmer ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), has been that a parent is not required to pay support for a child in college unless it is not an undue hardship. See Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). A corollary to this principle is that which requires that a parent must sacrifice to support and maintain minor dependent children while he is not required to sacrifice to send his older children to college or post-high school training.² Applying these time-honored fundamental principles to the present fact situation, the issue of whether or not the father paid college support or how much could not be reached or resolved until it was first determined that the needs of the minor dependent children had been met and to what extent the father could reasonably provide for them.³

It is irrelevant whether the determination of child support is made by virtue of the guidelines, pursuant to the Melzer formula, Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), or by agreement of the parties. Once the appropriate amount was ascertained for support of minor children based on the father’s financial wherewithal, without considering voluntary payments for college, then if required to do so, the court could decide the amount available for college support. It is sufficient to state that the needs of the dependent children must be met, even if the father (parents) must sacrifice to do so. The guidelines are simply a means for expediting and making uniform the imposition of support Orders.⁴ The underlying law has not been altered by their promulgation.

Applying the guidelines is an acceptable means for establishing the support Order for the minor dependent children and consideration of the amount contributed by the father for college support for the older child was not an element in that consideration. College support is a separate and independent inquiry, which is not required here. The father’s claim the court failed to consider his voluntary contribution toward the education of his son at Drexel University, in making an award for support to the minor dependent children, is without merit. His desire and willingness to continue that child’s education is admirable and desirable, but it cannot diminish the father’s primary duty to provide for the dependent children before reaching into the financial pool to educate the older child.

The trial court properly rejected appéllant’s claim that his contribution to the college education of one child was relevant to the support consideration of the minor children. As discussed above, the primacy of minor child support takes precedence over college support and the basic needs of the minor dependent child may not be reduced to allow for college support when funds are inadequate for both..

Order affirmed.

Concurring opinion by BECK, J.

1 . Appellant lives with his present fiance who is not involved in any of the support considerations subject of this appeal.

2 . The legislative intent in 23 Pa.C.S. § 4323, Support of emancipated child, makes it clear that parental responsibility ends at the time the child is emancipated which usually occurs at age 18.

3 . In no event may college support be extended beyond primary training regardless of the parents’ ability to pay. Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984).

4 . Guidelines are an important tool in expediting the flow of thousands of support matters but must take into consideration other factors such as the Melzer formula and the discretion of the trial judge in their application. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991); Szillery v. Wheaton, 382 Pa.Super. 394, 555 A.2d 237 (1989); Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Lampa v. Lampa, 371 Pa.Super. 1, 537 A.2d 350 (1986).