Pharoah v. Lapes

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 *597the confines of the two tier test. Id. There are myriad cases that have considered factors outside the narrow two tier test when fashioning support awards for college expenses. Id.1 Further, although a college education is increasingly being viewed as a necessity, the duty to support a college-bound student in his or her majority is a qualified one. Id. Additionally, “we do not believe that the child should have absolute discretion in selecting a college, and thereby unilaterally increasing the father’s support obligation.” Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 33, 234 A.2d 18, 20 (1967).

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.

*598Initially, it is worth noting that Anthony should be lauded for his academic achievements, and ideally he should be afforded the best education possible based upon these achievements. Our function, however, is not to compel divorced parents to provide the ideal support for their children, rather we only require them to furnish reasonable support. As the majority correctly states, what is an adequate and reasonable support order depends upon an assessment of all the circumstances in a particular case. The inadequacy in the majority’s analysis is that it does not assess the totality of the circumstances with the goal of replicating, as nearly as possible, the decision the intact family would have made. Milne, 383 Pa.Super. at 184, 187, 556 A.2d at 859, 861; see also Horan, Postminority Support for College Education-A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 607 (1987) (hereinafter Horan)3

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, *599for that of the parents. But this should not be done mechanically or arbitrarily. In essence, the court stands in loco parentis in making such decisions. For that reason, we must put ourselves in the shoes of each parent whose case comes before us. ... it is incumbent upon our judiciary to fashion each decision with the best interests of the whole family in mind.

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.

*600I remain mindful that, “[a]ll too often what parents would have done willingly had their relationship not deteriorated must, after the fact, be coerced for the benefit of their children.” Chesonis, 372 Pa.Super. at 117, 538 A.2d at 1379 (Cirillo, P.J., dissenting). More importantly, however, I remain focused on our primary objective which initially prompted courts to interfere in a divorced family’s relationships: to ensure that children of divorced parents are not unjustly deprived of opportunities they would have had if their parents had remained married. Milne, 383 Pa.Super. at 186-87, 556 A.2d at 859. Conversely, our aim has never been to permit the adult children of divorced parents to reap profits that they would not have enjoyed if the family were still intact.

■ 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. *601Here, Anthony did not notify his father that Georgia Tech had offered him a full tuition scholarship; instead he gave his father incomplete information expecting complete financial support. “We strongly believe that children should discuss their post-secondary educational plans with their parents if they desire the parent to contribute toward that goal.” Bedford, 386 Pa.Super. at 358 n. 8, 563 A.2d at 106 n. 8. A vital part of any discussion concerning college education in a time of skyrocketing tuitions necessarily involves a consideration of the relative costs of the institutions.

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.

. For example, in Milne, this court looked outside the two tier test and held that an adult child’s willful estrangement from his or her parent excuses that parent from his or her duty to contribute to the child’s educational expenses. In Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989), we clarified the estrangement necessary to cut off a parent’s duty to contribute to support of the child’s college expenses. See also Sutliff v. Sutliff, 515 Pa. 393, 403, 528 A.2d 1318, 1322 (1987); Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Francis v. Francis, 358 Pa.Super. 391, 517 A.2d 997 (1986); DeVergilius v. DeVergilius, 329 Pa.Super. 434, 478 A.2d 866 (1984); Commonwealth ex rel. Smith v. Smith, 217 Pa.Super. 1, 268 A.2d 161 (1970); Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291 (1962).

. Although the father has not contested his ability to pay, it is not inconceivable that the cost of a MIT education may work an undue hardship even upon a parent who has annual earnings of approximately $200,000.00.

. "The goal of postminority support is not to make wholesale awards of college tuition, but to replicate, as closely as possible the decision the intact family would make.” Horan, 20 Fam.L.Q. at 607. "In essence, by carefully evaluating the most salient factors comprising the family’s total circumstances, the court [Hardisty v. Hardisty, 183 Conn. 253, 439 A.2d 307 (1981) ] attempted to identify the approach which the parties themselves would have taken to educate their child had their marriage not been terminated.” Note, Support Obligations of the Non-Custodial Parent for Private Secondary and College Education: Toward a Uniform and Equitable Resolution, 16 Suffolk U.L. Rev. 755, 767 (1982) (hereinafter Parental Support Obligations).

. The majority notes that parents who can afford to meet their financial obligations should, so that more resources would be available for those who genuinely need financial assistance. However, the pool of financial resources for the truly needy is equally drained when the intact family, although capable, decides not to finance their child's college education, as when capable divorced parents arrive at this same decision.