BRYNES v. Caldwell

CIRILLO, Judge:

I respectfully dissent. Unlike the majority, I conclude that Act 62, which imposes a duty of postsecondary educational support upon divorced parents,1 is unconstitutional on equal protection grounds. I, therefore, would reverse the trial court’s order directing Father to contribute to Elizabeth’s postsecondary education.

*589The equal protection clause is a pledge of the protection of equal laws, and its requirement is satisfied if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government. U.S. Const, amend. XIV; Pa. Const, art. I, §§ 1 and 26, art. Ill, § 32; Application of Christy, 362 Pa. 347, 67 A.2d 85, cert. denied, Christy v. Conver, 338 U.S. 869, 70 S.Ct. 145, 94 L.Ed. 533 (1949). The concept of equal protection requires that uniform treatment be given to similarly situated individuals. Smith v. City of Philadelphia, 512 Pa. 129, 136-37, 516 A.2d 306, 310 (1986). If distinctions are drawn, the challenged policy must be reasonably justified. The level of justification depends upon the type of classification drawn and the governmental interest in promulgating the classification, and the relationship between that interest and the classification itself. Id. at 137-38, 516 A.2d at 310-11.

The types of classifications are: (1) classifications which implicate a “suspect” class or a fundamental right; (2) classifications implicating an “important” though not fundamental right or a “sensitive” classification; and (3) classifications which involve none of these. Id. Should the statutory classification in question fall into the first category, the statute is strictly construed in light of a “compelling” governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an “important” governmental purpose; and if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.

Id. at 138, 516 A.2d at 311.

Here, the group affected, divorced parents, is not a “suspect” or “sensitive” class. The right infringed, an economic right, is not deemed “fundamental” or “important.” As the majority has done in its evaluation of this issue, I, therefore, utilize the lowest level of scrutiny — the rational basis test. The statute must be sustained if it bears a rational relationship to a legitimate state interest. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Dansby v. Thomas Jefferson *590University Hospital, 424 Pa.Super. 549, 553-54, 623 A.2d 816, 819 (1993).

Although this court is free to interpret our Constitution in a more generous manner than the federal Constitution, Fischer v. Department of Public Welfare, 509 Pa. 293, 305, 502 A.2d 114, 211 (1985), “[i]n the equal protection area ... we have chosen to be guided by the standards and analysis employed by the [United States] Supreme Court and have adopted those standards and analysis ... [in interpreting our Constitution].” Dansby, 424 Pa.Super. at 556, 623 A.2d at 820 (quoting Commonwealth v. Parker White Metal Co., 512 Pa. 74, 83, 515 A.2d 1358, 1362 (1986)).

As early as 1765, Blackstone aptly summarized the rationale underlying the parental duty of support:

The duty of parents to provide for the maintenance of their children, is a principle of natural law.... By begetting them, therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.

1 W. Blackstone, Commentaries on the Law of England 447-448 (1765). “Maintenance in 1765, however, did not extend far beyond food, clothing and shelter.” Spitzer v. Tucker, 404 Pa.Super. 539, 545, 591 A.2d 723, 726 (1991) (Cirillo, P.J., dissenting). In 1992, the Pennsylvania Supreme Court determined that the duty of support extended to a “basic education,” defined as a high school education, or until a minor reaches the age of eighteen, whichever occurs later. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). The Court stated:

In recent history, the Superior Court has adopted and applied the [Commonwealth v.] Gilmore, [97 Pa.Super. 303 (1929) ] analysis to college educational support of a child. In essence, the Superior Court has transferred this “principle of necessity” of a basic fundamental education to a *591requirement that each child be entitled to an “enhanced” education. We do not agree with this transformation.

Id. at 529, 616 A.2d at 632.

Act 62, which in effect negated the Supreme Court’s decision in Blue, and is applicable only to divorced parents, imposes upon that class of parents an obligation to provide financially for an adult child’s college or postsecondary education.2 Nondivorced parents have no coextensive legal obli*592gation to provide support for their child’s postsecondary education.

The child of nondivorced parents may find a way to finance the postsecondary education of his or her choice, or may not. Nondivorced parents will, as is most often the case, do whatever is necessary, even at a sacrifice, to provide their child with the best that they can offer, or they may not. This is not for us to question, and so far as this court or the lawmakers have ventured into this personal, financial family matter, we have intruded. Milne v. Milne, 383 Pa.Super. 177, 186-87, 556 *593A.2d 854, 859-60, appeal denied, 524 Pa. 598, 568 A.2d 598 (1989). Just as parents in an intact family enjoy the freedom of making the personal decision of whether and to what extent to provide postsecondary educational support for their child, free from interference or mandates by the courts or laws of the Commonwealth, so too should divorced parents be free to manage this matter on their own. Regardless of the bitterness or hatred between ex-husband and ex-wife, it is the husband/wife relationship that has been severed, not the parent/child relationship. As such, neither this court nor the legislature has been called upon to delve into this matter. See generally, Horan, Postminority Support for College Education — A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589 (1987) (indicating that the underlying sentiment in decisions refusing to impose a duty of postminority support is that a system of voluntary support to adult children is more likely to foster a close relationship between parents and children).

If we momentarily humble ourselves, we may clear our vision sufficiently to acknowledge that interference in these matters may have fostered bitterness, providing legal weapons for mother and father, and encouraging the depletion of the family’s financial resources. See Milne, 383 Pa.Super. at 188, 556 A.2d at 860 (“to the extent that the courts of this Commonwealth impose obligations on divorced parents without expecting commensurate responsibilities and respect from adult children, we add to the family’s problems rather than alleviate them.”). Our Supreme Court recognized this in its decision to eradicate over thirty years of decisional law. See Blue, supra; see also Monsky v. Sacks, 403 Pa.Super. 40, 588 A.2d 19 (1991); Napier v. Hutchinson, 397 Pa.Super. 162, 579 A.2d 981 (1990); Pharoah v. Lapes, 391 Pa.Super. 585, 571 A.2d 1070 (1990); Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989); Milne, supra; Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988); Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986); Commonwealth ex rel. Williams v. Williams, 242 Pa.Super. 550, 364 *594A.2d 410 (1976); Doelp v. Doelp, 219 Pa.Super. 420, 281 A.2d 721 (1971); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

Furthermore, Act 62 magnifies the distinction of the divorced family by ignoring the realities of an intact family. It simply is not always the case that nondivorced parents agree on expenditures for postsecondary education for their children, nor is it always the case that nondivorced parents and the child agree on the matter. Nondivorced parents will settle this matter without legislative interference; divorced parents, on the other hand, will be ordered to provide as the legislature and the courts see fit. Nondivorced parents have the option to withhold support; divorced parents do not.

It is this author’s opinion, after many years of experience as a parent, a lawyer, a trial court judge, and an appellate court judge, that high school graduates who have prepared themselves for college by working hard for good grades in their classes and good scores on the scholastic aptitude tests, and who have endeavored to work in the summer to aid in the expense of postsecondary education, are rarely turned away by a parent who is respectfully asked to contribute to his or her postsecondary education. The key to this problem is to recognize that the love, respect and humility that a child owes and gives to his or her parents' will usually control the volitional contributions made by a non-obiigated divorced parent.

I find, therefore, that Act 62 differentiates between parents similarly situated and that this classification bears no reasonable relationship to a legitimate legislative purpose. Application of Christy, supra, 362 Pa. 347, 67 A.2d 85; Dansby, supra, 424 Pa.Super. 549, 623 A.2d 816; see also McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Act 62, which codifies this, court’s pronouncements beginning with Ulmer v. Sommerville, supra,3 200 Pa.Super. 640, 190 A.2d 182, frustrates the legislative *595purpose to assure children of divorced parents a postsecondary education.4 History should teach us that the children of divorced parents may fare better without heightened interference, and humility should enable us to look back on the past thirty years and honestly assess the utility our pronouncements have had in these skirmishes. “It is by practical experience and not by theoretical inconsistencies that the question of equal protection is to be decided.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949). As one commentator has noted:

[I]n a free society the law should force one adult to subsidize another only in compelling circumstances; and, a young adult’s desire to attend college, however laudable it may be, cannot reasonably be said to meet this test. If the ambition and aptitude are present, it is probable that the aspiring student will find a way to obtain [an] education without making his [or her] reluctant and financially-pressed parent help pay for the same; and, such a graduate will have attained, along with [a] degree, an appreciation of what industriousness and self-discipline can accomplish.

Moore, Parents’ Support Obligations to Their Adult Children, 19 Akron L.Rev. 183, 184 (1985).

I discern no rational basis for compelling divorced parents to pay for their adult child’s postsecondary education where no similar obligation lies with non-divorced parents. It is with the foregoing in mind that I conclude that Act 62, which *596imposes a duty of postsecondary educational support upon divorced parents where no similar obligation exists for married parents, is unconstitutional on equal protection grounds. Application of Christy, supra, 362 Pa. 347, 67 A.2d 85; 16A Am.Jur.2d, Constitutional Law, §§ 735-738 (1979); 7A P.L.E. Constitutional Law, § 241 (1980). See Moore, Parents’ Support Obligations to Their Adult Children, 19 Akron L.Rev. 183, 192 (1985) (presenting the argument that compelling divorced parents but not married parents to pay post-minority support is a violation of equal protection). Cf. Dillard v. Dillard, 104 N.M. 763, 727 P.2d 71 (App.1986) (trial court acted beyond its statutory authority in ordering support for children’s educational needs past the age of eighteen). But see LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993); Neudecker v. Neudecker, 566 N.E.2d 557 (Ind.App.2 Dist.1991), aff'd, 577 N.E.2d 960 (Ind.1991); Kujawinski v. Kujawinski, 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382 (1978). For this reason, I would reverse the trial court’s order.

CAVANAUGH, J., joins.

. The term "divorced parents” will hereinafter refer to all parents to which Act 62 is applicable, including unmarried parents or separated parents subject to a support agreement, support order, property settlement agreement, equitable distribution agreement, custody agreement and/or court orders and agreed to or stipulated court orders. See 23 Pa.C.S. § 4327(i)(l).

. Act 62 provides:

§ 4327. Postsecondary education costs
(a) General rule. — Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postsecondaiy educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postsecondaiy 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. This authority shall extend to postsecondaiy education, including periods of undergraduate or vocational education after the child graduates from high school. An award for postsecondaiy educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.
(b) Action to recover educational expenses. — An action to recover educational costs may be commenced:
(1) by the student if over 18 years of age;
(2) by either parent on behalf of a child under 18 years of age, but, if the student is over 18 years of age, the student’s written consent to the action must be secured.
(c) Calculation of educational costs. — In making an award under this section, the court shall calculate educational costs as defined in this section.
(d) Grants and scholarships. — The court shall'deduct from the educational costs all grants and scholarships awarded to the student.
(e) Other relevant factors. — After calculating educational costs and deducting grants and scholarships, the court may order either parent or both parents to pay all or part of the remaining educational costs of their child. The court shall consider all relevant factors which appear reasonable, equitable and necessary, including the following:
(1) The financial resources of both parents.
(2) The financial resources of the student.
(3) The receipt of educational loans and other financial assistance by the student.
(4) The ability, willingness and desire of the student to pursue and complete the course of study.
*592(5) Any willful estrangement between parent and student caused by the student after attaining majority.
(6) The ability of the student to contribute to the student's expenses through gainful employment. The student’s history of employment is material under this paragraph.
(7) Any other relevant factors.
(f) When liability may not be found. — A court shall not order support for educational costs if any of the following circumstances exist:
(1) Undue financial hardship would result to the parent.
(2) The educational costs would be a contribution for postcollege graduate educational costs.
(3) The order would extend support for the student beyond the student’s twenty-third birthday. If exceptional circumstances exist, the court may order educational support for the student beyond the student’s twenty-third birthday.
(g) Parent's obligation. — A parent’s obligation to contribute toward the educational costs of a student shall not include payments to the other parent for the student’s living expenses at home unless the student resides at home with the other parent and commutes to school.
(h) Termination or modification of orders. — Any party may request modification or termination of an order entered under this section upon proof of change in educational status of the student, a material change in the financial status of any party or other relevant factors.
(i) Applicability.—
(1) This act shall apply to all divorce decrees, support agreements, support orders, agreed or stipulated court orders, property settlement agreements, equitable distribution agreements, custody agreements and/or court orders and agreed to or stipulated court orders in effect on, executed or entered since, November 12, 1992.
(j) Definitions. — -As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Educational costs.” Tuition, fees, books, room, board and other educational materials.

"Postsecondary education.” An educational or vocational program provided at a college, university or other postsecondary vocational, secretarial, business or technical school.

23 Pa.C.S. § 4327, 1993, July 2, P.L. 431, No. 62, § 3, imd. effective.

. The Historical and Statutory Notes to Act 62 provides in part:

It is the intention of the General Assembly by enacting 23 Pa.C.S§ 4327 (relating to postsecondary educational costs) to codify the decision of the Superior Court in the case of [Commonwealth ex rel.] Ulmer v. Sommerville, 200 Pa.Super.Ct. 640, 190 A.2d 182 (1963), *595and the subsequent line of cases interpreting Ulmer prior to the decision of the Pennsylvania Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992.

. I emphasize that the Act speaks solely to adult children and postsecondary educational support. Neither the Act nor this opinion refers in any way to support for minor children or children in high school. It is well settled that the duty to support a minor child is virtually absolute. Sutliff v. Sutliff, 339 Pa.Super. 523, 537, 489 A.2d 764, 771 (1985), modified on appeal, 515 Pa. 393, 528 A.2d 1318 (1987). Further, I acknowledge that children are innocent parties, often innocent victims, in a divorce, and it is the obligation of the courts to protect them. This protection, however, terminates at adulthood. Blue, supra.