Griffin v. Griffin

WIEAND, Judge,

concurring and dissenting:

I concur in the decision of the majority to affirm that portion of the order which directs appellant to pay the sum of six hundred ($600) dollars per week for the support of three minor children. I also concur in the affirmance of the directive to pay two-thirds of the college expenses of a nineteen year old daughter and a twenty year old daughter and agree that that portion of the order ordering payment of two-thirds of the college expenses of a twenty-three year old daughter must be vacated. However, I dissent from the majority’s decision to remand for further proceedings concerning payment of college expenses for the emancipated, twenty-three year old daughter who elected to discontinue her college enrollment and enter the work force. When she subsequently decided to return to a different school and follow a different course of study, she could no longer compel her father to pay her expenses. This was not altered merely because her mother and father are now engaged in bitter divorce proceedings.

The law is clear that a parent does not have a duty to support an emancipated child, and that “once a child capable of self-support is emancipated, a subsequent change in situation does not revive any parental liability for support.” 67A C.J.S. Parent & Child § 6. See also: Commonwealth ex rel. Welsh v. Welsh, 222 Pa.Super. 585, 296 A.2d 891 (1972); Colantoni v. Colantoni, 220 Pa.Super. 46, 281 A.2d 662 (1971). Moreover, in DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987), this Court said:

The duty to pay for a child’s college education in certain circumstances results from a balancing of compet*206ing policies. The disadvantages forced upon children by their parents’ divorce should be minimized. Parents who would have supported their child’s education if they had not divorced, should not be encouraged to further victimize a child by leaving him without a college degree. However, this parental obligation is not limitless and does not extend into perpetuity. As discussed above, it is dependent upon a showing by the child that he is interested in pursuing his education. Id., [Brown v. Brown ] 327 Pa.Superior Ct. at 55-56, 474 A.2d at 1170.
By the age of twenty-three, a young adult will usually have had at least four years to complete his college education. If he has shown the requisite interest, he should have his degree in hand. If he has not demonstrated this commitment and has failed to take advantage of the opportunity given him, he has waived any right to complain about a lack of parental interest. As an adult, he must be prepared to accept at least this much responsibility. Of course, exceptional cases will arise where the circumstances are such that this rule should not be inflexibly applied. A child may be unable to complete his education in four years because his parent refused to pay support. If a support order is finally entered, it would hardly be fair to terminate the obligation before the child has received four full years of parental aid. A contrary result would reward the parent for his own intransigence. Likewise, a child may have been ill and unable to complete his course work in the usual time frame. Certainly, the law will not compound his suffering by refusing to consider these extenuating circumstances when determining the parental support obligation.

Id. 365 Pa.Super. at 290, 529 A.2d at 513-514 (emphasis added).

In the instant case, the oldest daughter is twenty-three years of age and in her ninth semester of college. Her college matriculation was voluntarily interrupted when she dropped out and obtained a job. Later, she enrolled at another institution of higher learning and changed her *207course of study. The evidence failed to show exceptional circumstances, as the majority concedes, which would have taken her out of the rule in DeWalt.

For these reasons, I would vacate the portion of the order which directed appellant to contribute to the cost of educating his emancipated daughter. I would not remand to provide her with an opportunity to relitigate the cause of action which she failed to prove when the matter was previously before the court. I would not afford her the proverbial “second bite.”