Diehl on Behalf of Beaver v. Beaver

BECK, Judge,

concurring:

I agree with the majority that this matter must be remanded to the trial court for further consideration. I join in that portion of the majority opinion which holds that the trial court gave proper treatment to the Bloomsburg University tuition waiver policy but failed to give proper consideration to Michael’s ability to contribute to the costs of his own education through employment.

I -write separately because I do not agree -with the majority’s determination that the trial court evaluated whether the support order imposed an undue financial hardship on the father. I also disagree with the majority’s conclusion that the court, in fashioning the support order, was mandated to consider the Stafford loans for which Michael was eligible but did not apply.

In calculating a postsecondary support order for educational costs, the trial court must fashion a preliminary support order based on the facts before it. It must then evaluate whether the order imposes an undue hardship on the parent. 23 Pa.C.S. § 4327(f)(1). Under the undue hardship standard the court may deny postsecondary support altogether or may mold an order so that it does not impose an undue hardship.

In this case father asserts that “the imposition of the order at issue creates an undue hardship upon ... [him], given his other child support expenses, his other general expenses, and his net income.”

I conclude that the trial court issued its order without determining whether it would impose an undue hardship on the father.1 Rather, the court improperly and simply based *100its order on the support guidelines. Under the guidelines the court looked to the amount of support that father would have been required to pay for two children. The court then reduced that sum by the amount of support the father was actually paying for Michael’s sibling and arrived at a figure which the court determined to be the father’s educational obligation for Michael. This was clearly error.

The rationale underlying the guidelines is applicable to minor children and not to postsecondary education. The guidelines anticipate that parents will be required to make sacrifices and perhaps even undergo hardships in order to support their minor children. This strict standard is not appropriate for support of an adult child seeking postsecondary education. “The duty of a parent to provide postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself.” 28 Pa.C.S. § 4327(a). The trial court therefore abused its discretion in entering an order for postseeondary educational support based on the guidelines.

The correct method to calculate support for postsecondary education is based on an analysis of educational costs as defined in the statute, 23 Pa.C.S. § 4327(j), adjusted by the student’s own.contribution to his education through grants and scholarships, 23 Pa.C.S. § 4327(d), and consideration of the relevant factors listed in 23 Pa.C.S. § 4327(e). The amount is then molded, if necessary, to avoid an undue financial hardship on the parent. 23 Pa.C.S. § 4327(f)(1).

*101Most postsecondary students have resources other than their parents to finance their education; for example, their own earnings, work study earnings, scholarships, grants and possibly loans. A parent, however, is expected to contribute except where an undue financial burden exists. A question arises as to whether a parent’s obligation is reduced if the student is eligible for loans. The majority’s view is that the trial court erred in this case because the trial court did not consider the student’s eligibility for loans. I find the majority has misread the statute.

Section 4327 of the Domestic Relations Code, 23 Pa.C.S. § 4327, addresses parental obligation for postsecondary education. Section 4327(a) requires that the student make “reasonable efforts to apply for scholarships, grants and work-study assistance.” The section does not cover loans. Loans are specifically covered in section 4327(e)(3) which instructs the court to consider “receipt of educational loans and other financial assistance” as a factor in determining the appropriate amount of a parent’s contribution to educational costs. Under § 4327(a) the student is required to make reasonable efforts to apply for scholarships, grants, and work-study assistance. Under 4327(e)(3) there is no parallel requirement that the student make reasonable efforts to apply for loans. Rather, that section requires consideration only of loans actually received by the student. Furthermore, loans are treated differently from scholarships and grants in calculating educational costs under the statute. Loans are treated as a factor to be considered in determining the amount of the parent’s obligation and are not required to be deducted from educational costs prior to determining that obligation. On the other hand, scholarships and grants must be deducted from educational costs before the court calculates the parent’s obligation. 23 Pa.C.S. § 4327(d).

It is thus clear from the structure of 23 Pa.C.S. § 4327 that loans are treated differently from other financial awards. As to loans the trial court has a measure of discretion which it does not have with respect to grants and scholarships. The language of section 4327(e)(3), the section relating to loans, *102permits, but does not require, the court to deduct some or all of the amount of loans the student receives from the parent’s support obligation. The statute recognizes that loans impose an indebtedness upon the student which it may or may not be equitable for the student to undertake. By contrast, other forms of financial assistance which do not impose the obligation of repayment on the student are always automatically deducted under section 4327(d).

Of course, the order fashioned by the court by application of the process set out in the statute may, as a practical matter, require the student to apply for loans if there is a shortfall between the parents’ obligations and total educational costs. Nevertheless the statute itself imposes no obligation to apply for loans and clearly provides that it is receipt of the loan, not eligibility for it, which may be considered by the court in fashioning a support order. It is a misreading of the statute for this court to remand for the trial court to reduce a parent’s obligation based on the eligibility of the student to receive loans where the student did not apply for and never received loans.2

This construction of the statute does not make student loans irrelevant to the financing of postsecondary education. As noted above, proper application of the statute will in many instances result in an order which makes it helpful or necessary for the student to apply for loans. It is appropriate for the court, in considering the various factors which, under the statute, are relevant to the amount of the support obligation, to remember that the parents’ funds are not the only source of financing for education and that loans may be available to the student to fund his education if the parents are unable to do so. See Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972) (although availability of loans does not negate parent’s duty of support, it “does merit cognizance ... when a serious question of undue hardship is *103presented”). I recognize that for many, if not most, families, loans are an indispensable part of the total financial package for postsecondary education. However, our legislature has determined that for purposes of determining the postsecondary educational support obligations of parents, loans are to be treated differently from other monetary awards.

Accordingly, I cannot conclude that the trial court erred in failing to consider the amount of loans for which Michael was eligible but for which he did not apply.

Like the majority, I would reverse the order of support and remand for further proceedings.

. Although the majority states that such a determination was made, I am unable to find any indication in the trial court's opinion that the undue hardship standard was applied, despite appellant's specific exception based on an undue financial hardship. Moreover, even if such *100a determination were made, this record lacks findings as to appellant’s legitimate and reasonable living expenses. Such findings are necessary to support a determination regarding undue hardship. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989).

Although the transcript of the master’s hearing in this matter reflects that appellant submitted evidence sufficient to allow the trial court to make the required findings regarding his expenses, the trial court failed to do so. The trial court did not conclude that appellant failed to meet his burden of proving undue hardship by the fair weight and preponderance of the evidence. Compare Byrnes v. Caldwell, 439 Pa.Super. 574, 578-81, 654 A.2d 1125, 1127-28 (1995). Rather, the trial court ignored the evidence submitted regarding expenses and failed to make any finding whatsoever regarding undue hardship.

. McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1991), cited by the majority, does not hold to the contrary. In that case we remanded for consideration of the student’s “receipt of educational loans and other financial assistance.” This disposition was entirely in keeping with my interpretation of sections 4327(a) and 4327(e)(3).