10/11/95 BONITA KLINE CURTIS v. PHILIP H. KLINE
BLUE BOOK CITATION FORM: 1995.PA.1585 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
[1] [J-148A-1995]
[2] IN THE SUPREME COURT OF PENNSYLVANIA
[3] EASTERN DISTRICT
[4] BONITA KLINE CURTIS
v.
[5] PHILIP H. KLINE
[6] APPEAL OF COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE
[7] No. 6 Eastern District Appeal Docket 1994
[8] Appeal from the Order of the Court of Common Pleas of Chester
County, Domestic Relations Section, Entered January 12, 1994 at No. 1012
N. 1984, Granting Defendant's Petition to Modify and Terminate Support
[9] ARGUED September 21, 1995
[10] DECIDED: October 10, 1995
[11] OPINION
[12] JUSTICE ZAPPALA
[13] In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), we declined
to recognize a duty requiring a parent to provide college educational
support because no such legal duty had been imposed by the General
Assembly or developed by our case law. As a result of our Blue
decision, the legislature promulgated Act 62 of 1993. Section 3 of the
Act states:
[14] (a) General rule. -- . . . 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.
[15] 23 Pa.C.S. Section(s) 4327(a).
[16] The issue now before us is whether the Act violates the equal
protection clause of the Fourteenth Amendment of the United States
Constitution.*fn1 The Court of Common Pleas of Chester County held that
it did, resulting in this direct appeal.*fn2
[17] The relevant facts are not in dispute. Appellee is the father
of Jason, Amber and Rebecca. On July 12, 1991, an order of court for
support was entered on behalf of Appellee's children. On March 2, 1993,
Appellee filed a petition to terminate his support obligation as to
Amber, a student at Kutztown University, and Jason, a student at West
Chester University. After Act 62 was promulgated, Appellee was granted
leave to include a constitutional challenge to the Act as a basis for
seeking relief from post-secondary educational support.
[18] In accordance with Pa.R.Civ.P. 235, the Attorney General was
notified of the constitutional challenge to Act 62, but declined to
participate in the litigation. On January 11, 1994, the trial court
granted Appellee's petition to terminate support for Amber and Jason,
concluding that Act 62 violated the equal protection clause of the
Fourteenth Amendment of the United States Constitution. After
Appellee's petition to modify his post-secondary education support
obligation was disposed of, the Department of Public Welfare (DPW)
sought and was granted leave to intervene. DPW then filed a notice of
appeal to this Court.
[19] The equal protection clause of the Fourteenth Amendment of the
United States Constitution in pertinent part provides:
[20] No State shall . . . deprive any person of life, liberty, or
[21] property, without due process of law; nor deny to any person
[22] within its jurisdiction the equal protection of the laws.
[23] The essence of the constitutional principle of equal protection
under the law is that like persons in like circumstances will be treated
similarly. Laudenberger v. Port Authority of Allegheny County, 496 Pa.
52, 436 A.2d 147 (1981). However, it does not require that all persons
under all circumstances enjoy identical protection under the law. James
v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984). The right to equal
protection under the law does not absolutely prohibit the Commonwealth
from classifying individuals for the purpose of receiving different
treatment, Robson v. Penn Hills School District, 63 Pa. Cmwlth. 250, 437
A.2d 1273 (1981), and does not require equal treatment of people having
different needs. Houtz v. Commonwealth, Department of Public Welfare,
42 Pa. Cmwlth. 406, 401 A.2d 388 (1979). The prohibition against
treating people differently under the law does not preclude the
Commonwealth from resorting to legislative classifications, Heisler v.
Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237 (1922),
provided that those classifications are reasonable rather than arbitrary
and bear a reasonable relationship to the object of the legislation.
Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358
(1986). In other words, a classification must rest upon some ground of
difference which justifies the classification and have a fair and
substantial relationship to the object of the legislation. Id.
[24] Judicial review must determine whether any classification is
founded on a real and genuine distinction rather than an artificial one.
Equitable Credit and Discount Company v. Geier, 342 Pa. 445, 21 A.2d 53
(1941). A classification, though discriminatory, is not arbitrary or in
violation of the equal protection clause if any state of facts
reasonably can be conceived to sustain that classification. Federal
Communications Commission v. Beach Communications, Inc. U.S., 113 S.Ct.
2096, 124 L.Ed.2d 211 (1993); Dandridge v. Williams, 397 U.S. 471, 90
S.Ct. 1153, 25 L.Ed.2d 491 (1970). In undertaking its analysis, the
reviewing court is free to hypothesize reasons the legislature might
have had for the classification. Federal Communications Commission v.
Beach Communications, Inc.; Martin v. Unemployment Comp. Bd. of Review,
502 Pa. 282, 466 A.2d 107 (1983). If the court determines that the
classifications are genuine, it cannot declare the classification void
even if it might question the soundness or wisdom of the distinction.
Equitable Credit and Discount Company v. Geier.*fn3
[25] We are also mindful of the different types of classifications
and the standards according to which they are weighed:
[26] 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. Smith v. City of Philadelphia, 512 Pa. at 138, 516 A.2d
311 (citation omitted).
[27] In this instance, we are satisfied that Act 62 neither
implicates a suspect class nor infringes upon a fundamental right.
Neither the United States Constitution nor the Pennsylvania Constitution
provides an individual right to post-secondary education. The
Pennsylvania Constitution provides only that, "The General Assembly
shall provide for the maintenance and support of a thorough and
efficient system of public education to serve the needs of the
Commonwealth." Article III, Section 14. Through the Public School Code
of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. Section(s)
1-101 et seq., the General Assembly has established a statutory right to
participate in public education and has established compulsory
attendance requirements that in no case extend to post-secondary
education. See 24 P.S. Section(s) 13-1301 and Section(s) 13-1326 -
13-1330. Apart from Act 62, there appears to be no expression of policy
regarding an individual's "entitlement" to participate in post-secondary
education.
[28] Likewise, the classification does not implicate an important
though not fundamental right.*fn4 Consequently, Act 62 must be upheld
if there exists any rational basis for the prescribed classification.
It is in this context that we review the Act's creation of a duty, and
more significantly a legal mechanism for enforcement of that duty,
limited to situations of separated, divorced, or unmarried parents and
their children.
[29] In applying the rational basis test, we have adopted a two-step
analysis. See Plowman v. Commonwealth, Dpt. of Transportation, 535 Pa.
314, 635 A.2d 124 (1993). First, we must determine whether the
challenged statute seeks to promote any legitimate state interest or
public value. If so, we must next determine whether the classification
adopted in the legislation is reasonably related to accomplishing that
articulated state interest or interests.
[30] The preamble to Act 62 sets forth the legislature's intention
"to codify the decision of the Superior Court in the case of Ulmer v.
Sommerville, . . . and the subsequent line of cases interpreting Ulmer
prior to the decision of the Pennsylvania Supreme Court in Blue v. Blue
. . . ." (Citations omitted). It also states:
[31] Further, the General Assembly finds that it has a rational and
legitimate governmental interest in requiring some parental financial
assistance for a higher education for children of parents who are
separated, divorced, unmarried or otherwise subject to an existing
support obligation.
[32] This latter statement begs the question of whether the
legislature actually has a legitimate interest in treating children of
separated, divorced, or unmarried parents differently than children of
married parents with respect to the costs of post-secondary education.
[33] Appellant argues that with the passage of Act 62 the legislature
may have chosen to treat the children of married families and
divorced/unmarried families differently, not as a preference towards the
latter, but out of deference to the Commonwealth's strong interest in
protecting the intact marital family unit from governmental
interference. Alternatively, Appellant argues that the legislature may
have determined that children in non-intact or non-marital families
require educational advantages to overcome disadvantages attendant to
the lack of an intact marital family. The critical consideration is
whether either of these bases or any other conceivable basis for
distinction in treatment is reasonable.
[34] Act 62 classifies young adults according to the marital status
of their parents, establishing for one group an action to obtain a
benefit enforceable by court order that is not available to the other
group. The relevant category under consideration is children in need of
funds for a post-secondary education. The Act divides these persons,
similarly situated with respect to their need for assistance, into
groups according to the marital status of their parents, i.e., children
of divorced/separated/never-married parents and children of intact
families.
[35] It will not do to argue that this classification is rationally
related to the legitimate governmental purpose of obviating difficulties
encountered by those in non-intact families who want parental financial
assistance for post-secondary education, because such a statement of the
governmental purpose assumes the validity of the classification.
Recognizing that within the category of young adults in need of
financial help to attend college there are some having a parent or
parents unwilling to provide such help, the question remains whether the
authority of the state may be selectively applied to empower only those
from non-intact families to compel such help. We hold that it may not.
In the absence of an entitlement on the part of any individual to
postsecondary education, or a generally applicable requirement that
parents assist their adult children in obtaining such an education,*fn5
we perceive no rational basis for the state government to provide only
certain adult citizens with legal means to overcome the difficulties
they encounter in pursuing that end.
[36] It is not inconceivable that in today's society a divorced
parent, e.g., a father, could have two children, one born of a first
marriage and not residing with him and the other born of a second
marriage and still residing with him. Under Act 62, such a father could
be required to provide post-secondary educational support for the first
child but not the second, even to the extent that the second child would
be required to forego a college education. Further, a child over the
age of 18, of a woman whose husband had died would have no action
against the mother to recover costs of a post-secondary education, but a
child over the age of 18, of a woman who never married, who married and
divorced, or even who was only separated from her husband when he died
would be able to maintain such an action. These are but two examples
demonstrating the arbitrariness of the classification adopted in Act 62.
[37] In LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993), the
New Hampshire Supreme Court was faced with the issue of the
constitutionality of a state statute regarding post-secondary
educational support. Initially, it must be noted that the Court decided
this appeal based upon the New Hampshire constitution even though the
appellant contended that the statute denied him equal protection under
both the federal and state constitution.
[38] The underlying premise upon which the New Hampshire Supreme
Court undertook its constitutional analysis of the post-secondary
educational support scheme was that the legislation created two
classifications: married parents and divorced parents. The object of
the legislation was to protect children of divorced parents from being
unjustly deprived of opportunities they would otherwise have had if
their parents had not divorced. The statute was promulgated to ensure
that children of divorced families are not deprived of educational
opportunities solely because their families are no longer intact. The
result is a heightened judicial involvement in the financial and
personal lives of divorced families with children that is not necessary
with intact families with children. The New Hampshire Supreme Court
concluded that because of the unique problems of divorced families, the
legislature could rationally conclude that absent judicial involvement,
children of divorced families may be less likely than children of intact
families to receive postsecondary educational support from both parents.
[39] With all due respect to our sister state, we must reject the New
Hampshire Supreme Court's analysis in LeClair. The discriminatory
classification adopted by our legislature is not focused on the parents
but rather the children. The question is whether similarly situated
young adults, i.e. those in need of financial assistance, may be treated
differently.*fn6
[40] Ultimately, we can conceive of no rational reason why those
similarly situated with respect to needing funds for college education,
should be treated unequally. Accordingly, we agree with the common
pleas court and conclude that Act 62 is unconstitutional.
[41] The Order is affirmed.
[42] Mr. Justice Montemuro files a Dissenting Opinion in which Mr.
Justice Cappy joins.
[43] Mr. Justice Montemuro is sitting by designation.
[44] MR. JUSTICE MONTEMURO
[45] I must dissent.
[46] As the Majority correctly points out, the rational basis test to
determine whether a statute is constitutional requires, first, a
determination of whether the challenged legislation seeks to promote any
legitimate state interest. It must then be decided whether the statute
bears a reasonable relationship to the intended objective. Commonwealth
v. Parker White Metal Company, 512 Pa. 74, 515 A.2d 1358 (1986).
However, "the Constitution does not require situations `which are
different in fact or opinion to be treated in law as though they were
the same.'" Wells v. Civil Service Commission, 423 Pa. 602, 604, 225
A.2d 554, 555 (1967) cert. denied, 386 U.S. 1035 (quoting Gossart v.
Cleary, 335 U.S. 464 (1948)). Indeed, a statute will not be ruled
constitutionally invalid under this test "unless it is `patently
arbitrary' and bears no rational relationship to a legitimate government
interest." Frontero v. Richardson, 411 U.S. 677 (1973). The Majority
challenges not merely the means of execution, but the legitimacy of the
government interest which the statute is expressly designed to promote.
[47] Act 62 is directed at furthering the education of the citizens
of this Commonwealth. It operates on the assumption that divorce
necessarily involves a disadvantage to the children of broken families,
and is intended to assure that children who are thus disadvantaged by
the divorce or separation of their parents are not deprived of the
opportunity to acquire post secondary school education. In effect, it
attempts to maintain the children of divorce in the same position they
would have been in had their parents' marriage remained intact. The Act
is not intended to, nor does it, place a premium on the rights of
children of divorce while devaluing the same rights for children from
intact marriage. It merely recognizes that, in general, divorce has a
deleterious effect upon children, which should, insofar as is possible,
be redressed. Thus while constitutional principles permit this intended
result, a "difference in fact or opinion" recognized by the Legislature
as within its purview, the Majority has declared that, at least for
college age children, the distinction between the children of broken
families and those of intact families simply does not exist.
[48] In rejecting the authenticity of the premise underlying the
statute, the Majority also challenges the validity of the legislative
interest. It contends that the expressed intention of the statute "will
not do" because the Legislature actually has no legitimate interest in
treating children of broken marriages differently than children of
intact marriages. The Majority theorizes that since the children of
intact families may be no less in need of funds for purposes of higher
education, they are situated similarly to children of divorced or
separated parents, and any distinction between them is inconsequential.
[49] It would be difficult to argue successfully that the payment of
child support is, in general, an obligation freely acknowledged and
willingly undertaken by non-custodial parents. The extraordinary amount
of time, attention and money devoted by courts, government agencies and
legislatures to fashioning and enforcing support orders is testament to
the unfortunate fact that the opposite is true.*fn7 Moreover, the
impact of parental non-compliance with support orders on children in
need of basic necessities is obvious, hence the stated purpose of the
Support Guidelines is to provide for children's reasonable needs which
might, and frequently do, absent enforcement of established orders,
otherwise go unmet.*fn8
[50] It has also been widely acknowledged that among the negative
effects of divorce on children are those which concern higher education.
See e.g., Smyer and Cooney, Family Relations Across Adulthood:
Implications for Alimony and Child Support Decisions, American Bar
Association National Symposium on Alimony and Child Support (Apr. 24-25,
1987); Wallerstein and Corbin, "Father Child Relationships After
Divorce; Child Support and Educational Opportunity, 20 FAM. L.Q. 109
(1986). Courts faced with cases similar to the one at bar have also
noted, over and over again, that in divorce, the normative rules of
behavior may no longer apply. Ex Parte Bayliss, 550 So.2d 986 (Ala.
1989); Kujawinski v. Kujawinski, 71 Ill.2d 563, 376 N.E.2d 1382 (1978);
Neudecker v. Neudecker, 577 N.E.2d 960 (Indiana 1991); Vrban v. Vrban,
293 N.E.2d 198 (Iowa 1980). Whether because they lose concern for their
children's welfare, or out of animosity toward the custodial parent,
non-custodial parents frequently become reluctant to provide financial
support for any purpose, but are particularly determined to avoid the
costs of a college education. Childers v. Childers, 89 Wash. 2d 592, 575
A.2d 201 (1978). Then the custodial parent, who typically has less money
than the non-custodial parent, most often becomes the de facto bearer of
most, if not all, of the burden of educational expenses, even where the
non-custodial parent possesses both resources and background which would
inure to the child's benefit were the parents still married. L.
Weitzman, The Divorce Revolution 278 (1985). Such parents, are, in
addition, even less inclined to assist with the educational expenses of
daughters than of sons. Smyer and Cooney, supra, and Wallerstein, supra.
See also, S.F. Goldfarb, "A Model for Fair Allocation of Child Support,"
21 FAMILY L.Q. (Fall 1987).
[51] The courts addressing the issue have uniformly decided that
equal protection is not offended by an attempt to equalize the disparate
situation faced by children of divorce. Only the means are different.
Those facing challenges to a statutory provision have all found that the
differences between married and divorced parents establishes the
necessity to discriminate between the classes, e.g., Childers; Urban.
Others, in examining judge-made law found an extended dependency
justified court intervention. They all, however, delegated to the court
the authority to determine the propriety of an award.
[52] In LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993), the
New Hampshire Supreme Court recognized and addressed the very concerns
toward which Act 62 is directed -- the disadvantage wrought on children
by divorce of their parents, and the necessity for court intervention to
protect them from the consequences of this disadvantage. The New
Hampshire statute, RSA 458:20, codified decisions in which the New
Hampshire Supreme Court had recognized the jurisdiction of the superior
court to order divorced parents, consistent with their means, to
contribute toward the educational expenses of their college age
children.*fn9 Challengers of the statute bore the burden of showing
that the court had committed an abuse of discretion, and that the order
was "improper and unfair." Id. at 221, 624 A.2d at . The equal
protection argument focused on the parents, finding them similarly
situated with respect to the issue. However, the Majority here states
that because the focus of Act 62 is the treatment of children, the
marital status of their parents is irrelevant.*fn10 This argument is
specious,*fn11 since any child support legislation necessarily involves
the marital status of the parents. Intact families do not suffer
intervention by the courts unless their children are abused or
neglected. Recognition of the need for legislative or judicial action
to require support for children of broken families is irrefutable, as
the continuing governmental efforts to improve collection of support
attest. It is unrealistic to conclude, as the Majority does, that
merely because children are in need of funds for college rather than
subsistence, the effect of their parents marital status has magically
altered, and that enforcement of an obligation is no longer necessary.
[53] What must be remembered, and what the Majority fails to explore,
is that Act 62 does not make mandatory the directive to pay child
support for college. Section 4327(e)*fn12 lists standards to assist the
court in determining whether or not support is appropriate. Unless
these criteria are, in the estimation of the court, met by the parties,
no liability exists.
[54] The problem lies with the nature of the liability, which is,
quite simply, a moral duty, circumstantially prescribed. Under Act 62,
it is owed only by parents who are subject to an existing support
obligation, that is, they have acknowledged either voluntarily through
contract, or involuntarily through the necessity of court order that a
financial responsibility to pay for their children's upkeep exists. The
court has thus already become involved to the extent of entering an
order, or there exists another legal mechanism, e.g., separation
agreement, through which enforcement can be accomplished and
contribution monitored. In intact families, absent abuse or neglect, no
such initial intervention has occurred, and the court has no forum in
which to enforce a duty imposed on these parents. Compare, Reeves v.
Reeves, 584 N.E. 2d 589 (Ind. 1992). Moreover, limitations have been
placed on the ability to control children's education by legislative
fiat. See, Wisconsin v. Yoder, 406 U.S. 205 (1972) (state cannot compel
school attendance beyond eighth grade where family's religious beliefs
are compromised); Pierce v. Society of Sisters of the Holy Names of
Jesus and Mary, 268 U.S. 510 (1925) (state could not compel public
school attendance for all children between the ages of 8 and 16); Meyer
v. Nebraska, 262 U.S. 390 (1923) (state could not prohibit teaching of
German language). Thus intervention in the form of a statute requiring
parents of an intact marriage to finance their children's college
education would indeed infringe upon the constitutional/privacy right of
the parties.
[55] While it does not necessarily follow that in all cases children
of divorce are deprived of parental support for college, or that the
reverse is true and all children of intact families are provided with
the necessary encouragement and finances, children whose parents are
still married most often continue to receive support past majority.*fn13
Equal protection does not demand that every permutation be addressed
separately, what is sought is equality not uniformity.
[56] It cannot successfully be argued that the state has no
legitimate interest in furthering the education of its citizens. The
size of the state university system, the multiplicity of community
colleges and other educational programs designed to provide low cost
post-secondary training, all attest to the state's involvement with the
goal of bettering the information and functioning level of the
attendees. Clearly the Majority accepts this focus, hence its query as
to whether the statute would be acceptable were it only altered to
require all parents to contribute to the post-secondary educational
expenses of their children. However, as noted above, this kind of
government mandated action is constitutionally untenable when applied to
intact families.
[57] Conventional wisdom once dictated that divorced parents will
interact with their children in the same manner as they did during the
life of the marriage. Experience has dictated otherwise,*fn14 viz., the
widespread need for enforcement of court ordered support even from
parents for whom compliance is not an economic hardship. It is, after
all, these parents at whom Act 62 is aimed. Divorce modifies parental
behavior in ways which cannot always be anticipated. To ignore the
reality of these differences, and the impact necessarily produced upon
the children is shortsighted, as the educational achievements of the
next generations are critical to the success of this country in an
increasingly competitive world.
[58] The law need not, and should not, change direction to comport
with every change in the prevailing social winds. Nor is it designed to
redress every psychological and emotional ill which trails in the wake
of divorce. However, principles of justice require an unwavering
commitment to the protection of the weakest members of our society, our
children. Refusal to recognize their weakness breaches the social
compact, and violates the basic principles of fairness the law is
intended to uphold. Given the consequences of divorce, to deprive
children of broken marriages of the economic support which they would
normally receive from nuclear families is to deny them equal protection.
As the court in Childers, supra, noted, the imposition of a burden of
support does establish a classification with discriminatory obligations.
However, rather than an arbitrary, unreasonable or unjust
classification, there is instead a collection of special powers in
equity that the courts, regardless of legislation, have long used to
protect the children of broken homes. Id. at 604, 575 P.2d at 208. The
disadvantage exists; it cannot be ignored or wished away.
[59] If the Majority's view prevails, there is no recourse for these
children, who will be victimized twice, first by the disruptions, both
financial and psychological, of their parents' divorce, and again by the
system which is theoretically designed to protect them. Moreover, such
a course will not benefit the children of intact marriages in which,
because of a parental disinterest in education or a view that nonsupport
encourages the work ethic, the parents will also refuse to assist their
children. The result will be no improvement for anyone.
[60] Once the moral imperative which should motivate parents to
fulfill their obligations has dissipated, conscious effort by the state
must provide a substitute where it is able to do so. That is what the
Legislature wisely has done. By disregarding the rational basis
advanced for Act 62, the Majority now transforms this Court into a
super-Legislature.
[61] Accordingly, I dissent.
[62] Mr. Justice Cappy joins in this Dissenting Opinion.
***** BEGIN FOOTNOTE(S) HERE *****
[63] *fn1 The Appellee did not assert that he was denied equal
protection under our state constitution. We note, however, that we would
apply the same analysis and reach the same result under our state
constitution.
[64] *fn2 42 Pa.C.S. Section(s) 741.
[65] *fn3 We are also guided by the principle that a strong
presumption exists that all legislation promulgated by the General
Assembly is constitutional. 1 Pa.C.S. Section(s) ----. See also
Federal Communications Commission v. Beach Communications, Inc., supra;
Plowman v. Commonwealth, Dpt. of Transportation, 535 Pa. 314, 635 A.2d
124 (1993).
[66] *fn4 Appellee admits that in the court below both he and his
ex-wife argued that a "rational basis" test should be applied. He now
argues that since the trial court addressed the applicability of a
"heightened scrutiny" test, that argument should not be considered
waived. Since that issue was not raised before the trial court, we
decline to address it.
[67] *fn5 Quaere whether the legislature could extend the statutory
liability for support of children applicable to all parents, 23 Pa.C.S.
Section(s) 4321(2), without regard to marital status, 23 Pa.C.S.
Section(s) 4323(b), to include a duty to pay post-secondary education
costs?
[68] *fn6 See also Childers v. Childers, 89 Wash.2d 592, 575 P.2d 201
(1978), and Neudecker v. Neudecker, 577 N.E.2d 960 (Ind. 1991).
[69] *fn7 In fiscal year 1994, Pennsylvania expended over
$100,000,000 to collect over $840,000,000 through the Child Support
Enforcement Program, using various mechanisms such as wage attachment.
Of these collections, more than $713,000,000 was distributed to non-AFDC
families. (Ranking of Region III States Child Support Enforcement,
Fiscal Year 1994)
[70] *fn8 Nationally, of the $16.3 billion due under court orders in
1993, about $11.2 was actually paid, with only about half of those
awarded support receiving the full amount. (Child Support Enforcement,
Eighteenth Annual Report to Congress)
[71] *fn9 The intention of Pennsylvania's Legislature in enacting
23 Pa.C.S.A. Section(s) 4327 was precisely the same as that of New
Hampshire. Passage of Act 62 was a legislative effort to codify thirty
years worth of caselaw which began with the Superior Court decision in
Ulmer v. Somerville, 200 Pa. Super. 640, 190 A.2d 182 (1963), and ended
with this Court's decision in Blue v. Blue, 532 Pa. 521, 616 A.2d 628
(1992). See, Historical and Statutory Notes.
[72] *fn10 What these assumptions imply is that regardless of the
need involved, food, clothing and medical care, or higher education,
children qua children are always on an equal footing since they are
always in need of parental financial support. Thus, following the
Majority's logic, any legislation which distinguishes between children
on the basis of their parents' marital status is constitutionally
suspect, e.g., any law requiring support from parents no longer living
in an intact marriage, or never having been in such a marriage.
[73] *fn11 As the Amicus points out, there is real question whether
Appellee herein possesses standing to contest the supposedly unequal
treatment meted out to children by the statute. Moreover, the pleadings
filed by Appellee clearly establish himself as the party receiving
unequal treatment. (Defendant's Amendment to Petition to Modify, Para.
6.a.i.) Arguably, therefore, the pivot point of the Majority's argument
is not properly before this Court.
[74] *fn12 23 Pa.C.S.A. Section(s) 4327 (e)
[75] (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:
[76] (1) The financial resources of both parents.
[77] (2) The financial resources of the student.
[78] (3) The receipt of educational loans and other financial
assistance by the student.
[79] (4) The ability, willingness and desire of the student to pursue
and complete the course of study.
[80] (5) Any wilful estrangement between the parent and student
caused by the student after attaining majority.
[81] (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.
[82] (7) Any other relevant factors.
[83] *fn13 R. Washburn, "Post-Majority Support: Oh Dad Poor Dad," 44
TEMPLE L.Q. 319, 329 n. 55 (1971).
[84] *fn14 One national study reports that 40% of children are not
visited by their non-custodial parents. Frank F. Furstenberg, S. Philip
Morgan, and Paul D. Allison, "Paternal Participation and Children's
Well-Being After Marital Dissolution," AMERICAN SOCIOLOGICAL REVIEW 52
(1987): 695-701.
***** END FOOTNOTE(S) HERE *****
Republished on the ACFC Website by written permission of Versuslaw.
(c) 1996 VersusLaw, Inc., (206) 250-0142
http://www.versuslaw.com
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