Diehl on Behalf of Beaver v. Beaver

WIEAND, Judge:

This is an appeal from an order directing the appellant, Wayne Beaver, to contribute to the cost of providing a college education for his son. Because the trial court committed error in determining the amount of the order, we reverse and remand.

Wayne Beaver and Mary Diehl, formerly husband and wife, are the parents of two children: Michael, born on April 17, 1975, and Timothy, born on October 3, 1977. Wayne paid child support pursuant to court order until Michael was graduated from high school. The parties then agreed that Wayne was no longer required to pay support for Michael, and the order was modified to require payment of $313.00 per month for Timothy’s support. In the fall of 1993, however, Michael began attending Pennsylvania State University. On August 6, 1993, therefore, Mary filed a complaint seeking to compel support payments from Wayne for Michael’s college expenses. Following a hearing, a court-appointed master issued a recommended order for support, and both parties filed exceptions. On May 19,1994, the trial court ordered Wayne to pay $245.00 per month toward the cost of Michael’s postsecondary education, as well as $50.00 per month on account of accumulated arrearages. Wayne appealed.

In matters involving support, a reviewing court will not disturb an order of the trial court unless there has been an abuse of discretion. Ball v. Minnick, 538 Pa. 441, 448, 648 A.2d 1192, 1196 (1994); Oeler by Gross v. Oeler, 527 Pa. 532, 537, 594 A.2d 649, 651 (1991); Connor v. Connor, 434 Pa.Super. 288, 290, 642 A.2d 1136, 1137 (1994). An abuse of discretion exists if the trial court has overridden or misapplied the law, or if there is insufficient evidence to sustain the order. See: Drawbaugh v. Drawbaugh, 436 Pa.Super. 57, 59, 647 A.2d 240, 241 (1994); Kelly v. Kelly, 430 Pa.Super. 31, 34, 633 A.2d 218, 219 (1993); Fitzpatrick v. Fitzpatrick, 412 Pa.Super. 382, 386, 603 A.2d 633, 635 (1992).

Following his divorce, Wayne remarried. His second wife is an employee of Bloomsburg University. Evidence was introduced that dependent stepchildren of employees of Bloomsburg University are entitled to a waiver of tuition if they matriculate at that school.¹ Despite testimony to the contrary, the court found that Michael could not qualify under this policy because he did not permanently “reside” with his father and stepmother and because he had not been claimed as a dependent on their income tax returns. In view of the written statement of this policy, we are reluctant to fault the trial court for rejecting the oral explanation for the manner in which its policy is applied by Bloomsburg University. Resolution of factual issues is for the trial court, and a reviewing court will not disturb the trial court’s findings if they are supported by competent evidence. See: Perlberger v. Perlberger, 426 Pa.Super. 245, 263, 626 A.2d 1186, 1196 (1993); Campbell v. Campbell, 357 Pa.Super. 483, 490, 516 A.2d 363, 366 (1986); In re Cummings Estate, 330 Pa.Super. 255, 263, 479 A.2d 537, 541 (1984). It is not enough that we, if sitting as a trial court, may have made a different finding.

A court may not order support for postsecondary educational costs where “[ujndue financial hardship would result to the parent.” 23 Pa.C.S. § 4327(f)(1). In the instant case, Wayne had a monthly income of $2350.00. He was required to make monthly support payments in the amount of $313.00 for the parties’ younger child and $245.00 per month for Michael’s college education. Wayne contends on appeal that because income and expense statements which he submitted to the trial court demonstrated that he had monthly expenses in the amount of $2500.00, the court’s order imposed an undue hardship on him.² This is a close question, and the trial court did not make a specific finding as to the amount, if any, which appellant could pay without undue hardship. However, the trial court determined, as appropriate under the statute, that Michael’s educational costs were $9112.00 per year. The court then determined that Wayne’s equitable share of this amount would have been $5467.00 per year, or $455.00 per month. Taking into account Wayne’s other expenses, the court reduced this to $245.00 per month and concluded that this was a “reasonable” amount. While not specifically invoking the words “undue hardship”, therefore, it is nevertheless clear that the court was concerned with Wayne’s ability to fulfill all his financial obligations. In light of Wayne’s monthly income of $2350.00, we are unable to hold that the trial court’s determination was an abuse of discretion. See: Byrnes v. Caldwell, 439 Pa.Super. 574, 578-81, 654 A.2d 1125, 1128 (1995).

Wayne also contends that Mary’s earning capacity was greater than the monthly income attributed to her by the trial court. In determining one’s ability to provide support, the focus is generally on one’s earning capacity rather than on the person’s actual earnings. Kelly v. Kelly, supra at 34, 633 A.2d at 219; Singleton v. Waties, 420 Pa.Super. 184, 190, 616 A.2d 644, 647 (1992); Monsky v. Sacks, 403 Pa.Super. 40, 44, 588 A.2d 19, 21 (1991). A person’s earning capacity “is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Myers v. Myers, 405 Pa.Super. 290, 297, 592 A.2d 339, 343 (1991); Goodman v. Goodman, 375 Pa.Super. 504, 508, 544 A,2d 1033, 1035 (1988). Here, Mary was employed by Big Brothers and Big Sisters of Columbia County at a salary of approximately $16,000.00 per year. From 1980 to 1985, Mary had been employed as a teacher and had earned a substantially greater income. She testified, however, that recent attempts to find similar positions had been unsuccessful. The trial court accepted her explanation and attributed to her a monthly income of $1300.00. In light of the factual support for the trial court’s finding, this was not an abuse of discretion. See: Klahold v. Kroh, 437 Pa.Super. 150, 649 A.2d 701 (1994) (earning capacity should generally not be based on greater prior earnings where there is no evidence of a deliberate reduction in income to avoid a support obligation).

When ordering a parent to contribute to the costs of a child’s college education, a trial court must consider all relevant factors, including the “ability of the student to contribute to the student’s expenses through gainful employment.” 23 Pa.C.S. § 4327(e)(6). Here, the trial court attributed a $1140.00 earning capacity to Michael during the academic year. The court, however, allocated this sum for the payment of incidental expenses during the school year such as “snack foods, movies, clothing and social affairs,” rather than for direct educational expenditures. During the summer months the court also attributed an earning capacity of $1800.00 to Michael. The court found, however, that this income would be offset by Michael’s living expenses during the summer. These amounts, totalling almost $3000.00, represented a substantial amount for incidental or indirect expenditures. Given the limited income available to the appellant father and the absence of evidence to support the trial court’s finding of need for such incidental items, it appears that the trial court was overly generous to the son when it refused to require that he shoulder a part of the financial burden of obtaining the college education which he seeks.

This becomes abundantly clear when we consider that the trial court also refused to consider other funds which would have been available to the son if he had made any effort to obtain them. Thus, the appellant father complains that the trial court committed serious error when it refused to take into account student loans available to assist Michael in obtaining a college education. The undisputed evidence was that Stafford loans were available to Michael in the amount of $2625.00 during his freshman year, $3500.00 during his sophomore year, $5500.00 during his junior year, and at least $5000.00 during his senior year. The trial court held, however, that it was required to consider “only educational loans received by the student” and that the “financial circumstances of the parents in this case [did] not warrant that Michael avail himself of the Stafford Loan----”

The trial court’s belief that it could ignore the availability of these loans unless they were actually received by the student is based on its interpretation of the statute governing postsecondary educational costs, which provides, in part, that a court shall consider the “receipt of educational loans and other financial assistance by the student.” 23 Pa.C.S. § 4327(e)(3). However, the statute also makes clear that an “award for postsecondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.” 23 Pa.C.S. § 4327(a). See also: McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1994) (case remanded for a “determination regarding [student’s] receipt of educational loans and other financial assistance”); Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986) (trial court erred by failing to consider student’s “potential contribution ... in light of his parents’ financial circumstances”); Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972) (availability of loans “does not negate the duty of the parent but does merit cognizance thereof when a serious question of undue hardship is presented”). Thus, it appears that applying for financial assistance when available is generally an affirmative obligation on the part of the student, unless his or her support needs can otherwise be met by the parents with relative ease. Over the course of a four year college education, these loans would represent an amount in excess of $16,000.00 in funds available to Michael. The financial circumstances of the parties do not indicate a standard of living whereby such a significant sum of money can be readily ignored. We hold, therefore, that the trial court erred when it refused to consider student loans available to the student.

On remand, the trial court should consider some or all of the earnings of the student, as well as student loans available to him, and reduce the amount of the order accordingly.

The order of the trial court is reversed, and the case is remanded to the trial court for reconsideration and the entry of an order consistent with the foregoing opinion. Jurisdiction is not retained meanwhile.

BECK, J., files a concurring opinion.

1 . Michael did not apply for admission at Bloomsburg University.

2 . This income and expense statement is not part of the certified record before this Court.