delCastillo v. delCastillo

POPOVICH, Judge,

dissenting.

I must respectfully dissent from the majority’s conclusion that the lower court correctly interpreted the settlement agreement to require Dr. Juan J. delCastillo to pay for his son’s Bachelor’s Degree only. Based on Dr. delCastillo’s testimony, I am absolutely convinced that he is obligated to fund his son’s undergraduate and graduate studies.

When interpreting a settlement agreement, the trial court is the sole fact-finder and, absent an abuse of discretion, we will not usurp that function. Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 507, 535 A.2d 664, 665 (1988), appeal denied, 520 Pa. 589, 551 A.2d 216 (1988). Instantly, I am convinced that an abuse of discretion has occurred since the majority and the lower court have completely ignored the evidence of record in reaching their decisions.

The settlement agreement between Dr. delCastillo and his former wife specifically provides that the doctor shall pay 75% of the costs of his children’s education “beyond the high school level.” Settlement Agreement, ¶ 4.05. Arguably, an ambiguity does exist as to whéther the parties intended to provide for not only college expenses, but also those of graduate studies. Certainly, in this Commonwealth, there is no requirement that parents provide financially from their children’s graduate or *527professional school education. See Griffin v. Griffin, 384 Pa.Super. 188, 195, 558 A.2d 75, 79 (1989); Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). However, that does not prohibit parents from agreeing to provide for their children’s graduate or professional education.

Instantly, a review of the record clearly indicates that at the time he signed the settlement agreement, Dr. delCastillo intended to provide financial support for his children’s education at college and graduate or professional school. Dr. delCastillo is a medical physician who in 1990 earned a gross income of more than $140,000. Dr. delCastillo repeatedly testified that he always intended and advised his son to be a doctor, lawyer, accountant or any other professional. N.T., pp.77-78, 84-85. In fact, Dr. delCastillo specifically testified that at the time he entered into the settlement agreement, he intended it to provide for graduate education following college. N.T., 80. The record is clear that Dr. delCastillo’s desire to avoid his obligation is not based on the fact that he never agreed to fund his son’s graduate education, but rather is motivated by his plans to retire in two years. Dr. delCastillo is simply concerned about the adverse effect which the added financial obligation might have upon his retirement plans. N.T., p. 89.

The facts of this case clearly establish that at the time Dr. delCastillo entered in the agreement, he intended to fund his son’s bachelor’s and graduate or professional studies. I do not believe that Dr. delCastillo should be permitted to avoid his financial obligation simply because it is now inconvenient for him. In sum, I would find that the lower court erred when it determined that education “beyond high school” included college only.