author: CIRILLO, Judge:

text:
    604 A.2d 726
    Margaret Mary Pine BROWER v. James BROWER, Appellant. Margaret Mary Pine BROWER v. James BROWER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1992.
    Filed March 9, 1992.

      Robert C. Keller, Media, for appellant.
    Susan Chemer, Media, for appellee.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   CIRILLO, Judge:

This is a consolidation of two appeals by James Brower from an order of the Court of Common Pleas of Delaware County denying his petitions to vacate or reduce alimony and support payments. We quash the appeal insofar as it relates to support. We affirm the trial court’s order insofar as it relates to alimony and counsel fees.

Appellant James Brower (“husband”) and appellee Margaret Mary Pine Brower (“wife”) were married in 1967. The Browers are the parents of two sons, one born in 1967 and the other bom in 1971. The couple separated in the mid-1980s. On October 6, 1986 husband and wife signed a comprehensive property settlement agreement (“Agreement”) which outlined the rights and responsibilities of each, divided their personal and real property between them, and specified the amount and duration of spousal and child support and educational expenses husband was to pay. The Agreement was voluntarily negotiated and entered into by the parties. Each party was represented by an attorney. The divorce decree and order entered on March 31, 1988 specifically incorporated the Agreement “as fully as though the same were set forth herein at length.”

In November of 1988, wife filed a petition for contempt because husband was in arrears in child support and alimony and had failed to provide medical insurance for her as required by the Agreement. In October of 1990, husband filed a petition to vacate or reduce alimony. In November of 1990, the trial court entered an order denying husband’s petition to vacate or reduce alimony and referring wife’s petition for contempt to a judge for a hearing. After a hearing on the contempt petition, the court entered an order on April 10, 1991, again denying husband’s petition to modify alimony and directing husband to pay support for his younger son in the amount of $390.00 per month from October 1989 until his graduation from high school in June of 1990. In addition, husband was ordered to pay wife $9,200.00 within 90 days for his portion of their older son’s college expenses, as required by the Agreement. Finally, finding that husband had intentionally failed to meet his financial responsibilities, the court ordered husband to pay wife $3,000.00 in attorney’s fees, or $1,500.00 if paid within 90 days of the order.

AND NOW, this 31 day of March, 1988, it is ORDERED and DECREED that MARGARET MARY PINE BROWER, Plaintiff and JAMES McKEE BROWER, Defendant, are hereby divorced from the bonds of matrimony.
IT IS FURTHER ORDERED and DECREED pursuant to Pa.R.C.P. 1920.1, et seq. and Act 26-1980, 23 P.S. § 1, et seq., “The Divorce Code”, that the terms, provisions and conditions of a certain Property Settlement Agreement [Agreement] between the parties dated October 6, 1986, and attached to this Decree and Order as Exhibit "A” is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth herein at length. Said Agreement shall not merge with but shall survive this Decree and Order and shall be incorporated for purposes of enforcement only.

On April 22, 1991, husband filed a motion for judgment notwithstanding the verdict. In her answer to the motion for J.N.O.V., wife pled as new matter husband’s violation of Pa.R.C.P. 1920.52, which prohibits the filing of a motion for post-trial relief from support orders. On June 6, 1991, the trial court filed its order denying husband’s post-trial motion. Husband filed a notice of appeal to this court on July 5, 1991. In response, wife filed a motion to quash husband’s appeal for failure to file the appeal within thirty days of the date of the order. Wife’s motion to quash was deferred to this panel to be decided in conjunction with husband’s appeal.

Husband now presents the following issues for our review:

I. Whether the appellant should be obligated to pay child support in an excessive amount which would deprive him of a reasonable living standard?
II. Whether the partiesf] property agreement expressing their desire to educate their children if able, continues to bind them if they are financially unable to contribute to their common desire?
III. Whether the appellant should be granted a modification in his alimony payment which was incorporated in his property settlement agreement, if his financial condition has substantially changed?

Our scope of review of support orders is extremely narrow. A trial court has broad discretion in fashioning support awards and we will not reverse its decision unless there is insufficient evidence in the record to sustain it or the trial court abused its discretion. Lesko v. Lesko, 392 Pa.Super. 240, 243, 572 A.2d 780, 782 (1990). An abuse of discretion is “more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Marshall v. Ross, 373 Pa.Super. 235, 238, 540 A.2d 954, 956 (1988). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. Id.

Here, the trial court’s order combined two claims: husband’s petition to modify or vacate alimony and wife’s petition for contempt for failure to pay alimony and child support. “Although the trial court consolidated the matters raised in [wife's contempt] complaint with the claims raised by [husband] in the [alimony] proceeding, the [contempt] action and the [alimony] action were two separate proceedings. Baraff v. Baraff, 338 Pa.Super. 203, 208, 487 A.2d 925, 928 (1985) (emphasis added). Each proceeding is governed by separate rules of procedure. Husband’s alimony action is governed by Pennsylvania Rule of Civil Procedure 1920.52(a)(4) which provides, “In claims involving alimony the trial judge shall enter a decision which shall state the reasons therefor. The practice and procedure thereafter ... shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.” Rules 227.1 to 227.4 concern post-trial relief and provide, inter alia, that written motions for post-trial relief must be filed within ten days after the verdict or decision of the court is filed. Pa.R.C.P. 227.1(a); (c)(1) & (2). Husband filed a timely motion for J.N.O.Y. on April 22, 1991. See Pa.R.C.P. 106. The trial court’s order denying husband’s post-trial motion was filed on June 6, 1991. Husband filed his notice of appeal to this court on July 5, 1991, within the thirty day period prescribed by Pennsylvania Rule of Appellate Procedure 903(a). Therefore, husband’s appeal of the trial court’s denial of his petition to vacate or modify alimony is properly before us.

Husband now contends that the trial court erred in failing to reduce his alimony payments. “The appellant maintains that the property settlement agreement was incorporated with the divorce decree thus allowing it to [be] subject to modification pursuant to the provisions of sections 401, 501(e), 501(f), and 503 of the Divorce Code.” We disagree.

Section 401.1 of the Divorce Code, entitled “Effect of agreement between parties” provides:

(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(b) A provision of the agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court."

23 Pa.C.S.A. § 401.1 (emphasis added).

Thus, under section 401.1, the terms of a property settlement agreement, whether incorporated, as the Brow-er’s Agreement was, or merged, cannot be modified by a court unless the property agreement itself specifically provides for judicial modification. The Agreement signed by the Browers contains no “specific provision to the contrary,” as required under section 401.1(c). In fact, paragraph fourteen of the Agreement provides that “[n]o modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties ...” (emphasis added). Husband voluntarily entered into the Agreement. He was represented by counsel of his choice. Paragraph three attests to the fact that [t]he provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel____” Husband cannot now be heard to complain that the trial court abused its discretion in failing to vacate or modify the alimony provided for in the Agreement when, under the specific terms of that Agreement, as well as under section 401.1 of the Divorce Code, the trial court is precluded from doing so.

Husband next contends that the trial court should have modified his alimony payments under section 501(e). This claim, too, lacks merit. Support agreements, which are contracts, cannot be equated with support orders, which are statutory creations. “Since the two are enforceable in distinct fashions and are governed by clearly distinguishable principles of law, the attempt to homogenize these principles into a unitary concept, which creates a third entity not envisioned by the law, must fail.” Sonder v. Sonder, 378 Pa.Super. 474, 487, 549 A.2d 155, 162 (1988) (en banc). Here, husband is attempting to do just that. Husband petitioned the trial court to modify the alimony payments he had voluntarily negotiated and incorporated into the Agreement. However, the Agreement is a contract and can only be enforced under principles of contract law; it cannot be unilaterally modified by a court in the same manner as an alimony order. Sonder, supra. Thus, as the court never decreed an award of alimony pursuant to section 501 of the Divorce Code, the modification provisions of section 501(e) are inapplicable. However, husband is correct in stating that sections 501(f) and 503 are applicable to this case. Section 501(f), which enables a voluntary support agreement to be considered an order of the court for enforcement purposes, permits a court to utilize the panoply of enforcement procedures listed in section 503 to enforce voluntary support agreements.

It is well established that “[i]n Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts unless the agreement itself provides otherwise.” Jackson v. Culp, 400 Pa.Super. 519, 522, 583 A.2d 1236, 1238 (1990), allocatur denied, 529 Pa. 621, 600 A.2d 537 (1991) (citations omitted). The Brower Agreement contains no contrary provision; it merely provides that “[t]his Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania.” Husband has made no allegation of fraud or mistake in the negotiation or execution of the Agreement. This court has long held that “[wjhere parties to a divorce stipulate as to the amount of alimony to be paid, the court should accept the stipulation in the absence of fraud or overreaching by either party and enter an order accordingly.” Lyall v. Lyall, 240 Pa.Super. 649, 653, 361 A.2d 367, 369 (1976), citing Strickler v. Strickler, 138 Pa.Super 34, 10 A.2d 69 (1939); Hall v. Hall, 97 Pa.Super. 429 (1929). The trial court did so, by incorporating the Agreement into the divorce decree. “Because no appeal asserting fraud or mistake in the execution of the [Agreement] was taken from the divorce decree, the [Agreement] must be deemed to be valid.” Jackson, 400 Pa.Super. at 524, 583 A.2d at 1239.

As the Agreement is deemed to be valid, reformation is not possible. The Agreement stands unimpeached.

So long as a separation agreement stands unimpeached, the court cannot alter or change a provision for separate maintenance and support of the wife without the consent of both parties ... Absent such impeachment, there is no authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to.

Litwack v. Litwack, 289 Pa.Super. 405, 409, 433 A.2d 514, 516 (1981) (emphasis supplied).

Wife does not consent to vacating or modifying the alimony payments due her under the terms of the Agreement. Litwack, supra. Therefore, husband is bound by his contract. “None of the elements of due process, court review, and appealability are involved in agreements such as these, which are private undertakings between two parties, each having responded to the ‘give and take’ of negotiations and bargained consideration. As such, they are governed by the law of contracts.” Sonder, 378 Pa.Super. at 488, 549 A.2d at 162 (citations omitted). Therefore, husband is bound by his contract. The trial court did not err in denying husband’s petition to alter the alimony payments.

We note that under section 401.1(b), a provision providing for child support in a separation agreement, unlike one providing for alimony, is subject to modification by a trial court if the payor can establish changed circumstances. However, we are unable to apply section 401.1(b) to the circumstances of this case. Husband failed to file a timely notice of appeal to this court of the support issues covered by the trial court order of April 10,1991. The Note to Pennsylvania Rule of Civil Procedure 227.1 states: “The filing of a motion for post-trial relief is prohibited by the following rules, ... Rules 1910.11(k) and 1910.12(g) {orders of support).....” (emphasis added). Thus husband’s post-trial motion for J.N.O.V., which was appropriate for appealing the denial of modification of alimony, was inappropriate for appealing the support portions of the trial court’s order. The trial court’s order of April 10, 1991 was a final order. “At that point, appellant’s remedy was to pay the amount of the Judgment, petition to strike or open the Judgment, or appeal therefrom within 30 days. See Explanatory Note to Pa.R.C.P.1910.23.” Baraff, 338 Pa.Super. at 209, 487 A.2d at 928. See also Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987) (“exceptions [post-trial motions] may not be filed to a determination dismissing a petition to terminate support and that determination should be appealed directly.”) Furthermore,

“The lower court’s acceptance of, and ruling on, the post-trial motions does not extend the time for filing of an appeal from the Order of [April 10, 1991], Short of vacating that Order prior to the thirty days from its entry to allow for reconsideration, the court had no jurisdiction thereafter to act on that Order and it was without authority to rule on post-trial motions as it was limited by Pa.R.C.P. 1910.11(k).

Scheidemantle v. Senka, 371 Pa.Super. 500, 506, 538 A.2d 552, 556-557 (1988) (emphasis added); cf. Johnson v. Johnson, 357 Pa.Super. 248, 515 A.2d 960 (1986), allocatur denied, 515 Pa. 581, 527 A.2d 541 (holding that when there is no provision in the rules of civil procedure for the filing of post-trial motions, it was improper for the executrix to file post-trial motions, and the filing of such motions did not extend the time in which an appeal could be filed).

Husband filed his notice of appeal to this court on July 5, 1991, within thirty days of the trial court’s denial of his post-trial motion on June 6, 1991. However, the notice of appeal had to be filed within thirty days of the entry of the order from which the appeal is taken, Pa.R.A.P. 903(a), here the trial court's order of April 10, 1991. Baraff, supra; Manze, supra; see also Pa.R.C.P. 1910,11(k), 1910.-12(g). As a result of his failure to file a timely notice of appeal of the trial court order assessing support payments and college expenses against him, husband has waived his right to have us review his first two issues.

We conclude that there is sufficient evidence in the record to sustain the trial court’s order, and that the trial court did not abuse its discretion. Lesko, supra. We, therefore, grant wife’s motion to quash husband’s appeal, insofar as it relates to support, and we affirm the order of the trial court insofar as it relates to alimony and counsel fees.

      . The Divorce Decree provides:

      . April 2, 1980, P.L. 63, No. 26, § 401.1, added Feb. 12, 1988, P.L. 66, No. 13, § 2, effective immediately. 23 Pa.C.S. § 401.1 has been replaced by 23 Pa.C.S. § 3105, Dec. 19, 1990, P.L. 1240, No. 206, § 2, effective in 90 days. However, § 401.1 and § 3105 are virtually identical. As the divorce decree and order specifically incorporating the Agreement were entered March 31, 1988, after the March 12, 1988 effective date of § 401.1, we will analyze husband's appeal under § 401.1.

      . Section 503. Enforcement of arrearages

      If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in sections 501 and 502, after hearing, the court may, in order to effect payment of the arrearages:
      (1) Enter judgment.
      (2) Authorize the taking and seizure of the goods and chattels and collection of rents and profits of the real estate of the party.
      (3) Attach no more than 50% of the wages of the party.
      (4) Award interest on unpaid installments.
      (5) Require security to insure future payments.
      (6) Issue attachment proceedings, directed to the sheriff or other proper officer of the county, directing that the person named as having failed to comply with the court order be brought before the court at such time as the court may direct. If the court finds, sifter hearing, that the said person willfully failed to comply with the court order, it may deem said person in civil contempt of court and in its discretion make an appropriate order including, but not limited to, commitment of said person to the county jail for a period not to exceed six months.
      (7) Award counsel fees and costs.
      23 Pa.C.S.A. § 3703. As amended Feb. 12, 1988, P.L. 66, No. 13, § 3, immediately effective.


source: Caselaw Access Project

author: WIEAND, Judge: JOHNSON, Judge,

license: Public Domain

text:
    604 A.2d 732
    Joyce McCABE, Appellee, Paul KRUPINSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1991.
    Filed March 9, 1992.

      Frederic M. Wentz, Norristown, for appellant.
    Robert G. Leino, Eagleville, for appellee.
    Before WIEAND, JOHNSON and HOFFMAN, JJ.
   WIEAND, Judge:

As a general rule, a parent is not obligated to pay a child’s college expenses beyond the child’s twenty-third birthday absent exceptional circumstances. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). In this case, the trial court, by order dated April 9,1991, directed a father to pay all tuition and costs of books for a daughter who started college in September, 1986, and who will not be graduated before June, 1992. Father’s appeal requires that we examine the circumstances to determine if they are sufficient to support the trial court’s order.

Joyce McCabe, mother, and Paul Krapinski, father, were divorced in June, 1978. Custody of their two children, Lisa, born December 20, 1967, and Michael, born August 31, 1970, was obtained by their mother. Both parents have since remarried. Michael, unfortunately, died in 1985, while Lisa was in her senior year at high school. In September, 1986, she began matriculating at West Chester University.

An order for the support of Lisa had been entered against father on May 3, 1978 and modified on November 6, 1986. On June 20, 1990, mother filed a petition for an increase in the amount of the order for the support of her daughter, and, on July 3, 1990, father filed a petition to terminate the order. A support master recommended that the father’s duty to support his daughter continue only until the daughter’s twenty-third birthday on December 20, 1990. Exceptions were filed to this recommendation, and a hearing de novo was held before the trial court, which entered the order from which the present appeal has been filed.

A parent’s legal obligation to support a child in college, in the absence of a specific agreement to do so, exists only if two conditions are met. First, the child must be able and willing to pursue successfully a college course of study; and secondly, the parent must have sufficient estate, earning capacity or income to enable him or her to pay such support without suffering undue hardship. Grif fin v. Griffin, supra, 384 Pa.Super. at 194, 558 A.2d at 78. See: Lederer v. Lederer, 291 Pa.Super. 22, 25, 435 A.2d 199, 201 (1981); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 643-644, 190 A.2d 182, 184 (1963). Only in exceptional cases, however, may the parent’s obligation to support a child in college extend beyond the child’s twenty-third birthday. Griffin v. Griffin, supra, 384 Pa.Super. at 195, 558 A.2d at 79; DeWalt v. DeWalt, supra, 365 Pa.Super. at 289, 529 A.2d at 513. In DeWalt, the Court said:

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. [51], 55-56, 474 A.2d [1168], 1170 [1984].
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.Superior Ct. at 290, 529 A.2d at 513-514.

The fact that a child’s parents have been divorced is not alone such an exceptional circumstance as to require a parent to support a child in college beyond the child’s twenty-third birthday. If the rule were otherwise, there would be no need in most cases for a time limit upon a parent’s duty of support for a child who is attending college. The divorce between the child’s parents in the instant case occurred more than eight (8) years before Lisa entered college. Therefore, it cannot be made a basis for requiring appellant to support his daughter for six years while she attends college in search of a degree in secondary education.

In addition to the trauma caused by her parents’ divorce, however, the trial court found that Lisa’s pursuit of a college degree had been impeded by a psychological reaction to her brother’s death in 1985, her mother’s nervous breakdown in 1987 and her own depression, for which she had sought psychiatric help. These events, coupled with Lisa’s need to find a part-time job to meet her expenses, the court found, had prevented her from carrying a full course load. If these facts are correct, then a court could find that the circumstances were exceptional and required that the parent’s duty to support his child while attending college be extended beyond the child’s twenty-third birthday.

It is correct, as appellant argues, that Lisa’s testimony was not corroborated by any psychiatrist who allegedly treated her and that there was no medical or psychological testimony to establish a causal connection between the trauma in her life and her inability to complete the work needed for a degree in secondary education within four (4) years. Lisa’s testimony was corroborated in part, however, by the testimony of the Reverend Michael Dahulich, who had counseled with her.

This is not an easy case. Lisa has been a marginal student. She was unable to decide upon her major course of study until the beginning of her junior year. This meant that courses were taken for which credit could not be given toward her degree in secondary education. It was also necessary that several courses be repeated because of inadequate grades, and at least one course was dropped midterm.

The trial court found, based on her testimony, that the difficulties in Lisa’s search for a degree had been caused by the traumatic experiences which had interrupted her college career. Credibility is solely an issue for the trier of fact, and our review is limited to the question of whether the trial court’s findings of fact are supported by competent evidence. Kay v. Kay, 460 Pa. 680, 683, 334 A.2d 585, 586 (1975). Here, a review of the record discloses that the trial court’s findings are supported by competent evidence. On the basis of the record before this Court, therefore, it cannot be said that the trial court committed an error of law or abused its discretion. We will not reverse the trial court’s order merely because we, if we had heard this case as trial judges, may have decided it differently.

Appellant also argues that the trial court should have given consideration to the fact that a trust had been set up to provide for the education of both Lisa and Michael. However, the court found that this money had properly been exhausted by the children’s mother for the children’s use and benefit. The record does not permit a reviewing court to hold that this was error. Therefore, we will not disturb the court’s finding.

Order affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I agree with my distinguished colleague, Judge Wieand, that the trial court’s findings of fact are supported by competent evidence, and that the trial court’s conclusions and order are free of error and well within the trial court’s discretion. I join in the order of this Court which affirms the order directing Paul Krupinski, appellant, to pay support for his daughter’s college education, encompassing all expenses for tuition and books.

I write separately because I cannot join the belief of both Judge Wieand and the most distinguished trial judge, the Honorable Richard S. Lowe, that Pennsylvania law has inscribed, indelibly, an additional requirement of “unusual and exceptional circumstances” in those situations where the child seeking post-secondary educational support has attained age twenty-three.

In his order entered April 9, 1991, Judge Lowe states:

The Court is cognizant of the well settled principle that absent unusual and exceptional circumstances a parent is not obligated to pay a child’s college expenses beyond the child’s twenty-third birthday. Griffin vs. Griffin, 384 Pa.Superior Ct. 188, 558 A.2d 75 (1989); DeWalt vs. DeWalt, 365 Pa.Superior Ct. 280, 529 A.2d 508 (1987).

Order of Court, Lowe, J., filed April 11, 1991. My colleague, Judge Wieand, begins his analysis on this appeal, with the same assertion:

As a general rule, a parent is not obligated to pay a child’s college expenses beyond the child’s twenty-third birthday absent exceptional circumstances. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987).

Majority opinion, page 733. My review of our case law persuades me that the rule, if it exists, is the result of dictum and was necessary in only one of the cases where its declaration as a rule of law may be found. Because I believe that the restatement of the “rule” is counterproductive, I would distance myself from so much of the majority opinion as would pay homage to that principle.

In DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987), a panel of our court, with Judge Frank J. Montemuro, Jr. concurring in the result, rejected the appellant father’s claim that the order to pay $100 per month for his son’s college expenses imposed an undue hardship. The panel nevertheless modified the trial court’s order so that the support obligation would end in March 1988 when the son attained age twenty-three. In so doing, the court appeared to be relying completely on the earlier case of Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). The DeWalt panel said:

In Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), we stated that a parent’s obligation to pay his child’s college expenses may not be extended past the child’s twenty-third birthday except in unusual cases. Id., 327 Pa.Superior Ct. at 55, 474 A.2d at 1170. This is not an arbitrary number plucked indiscriminately from the judicial hat. It is consonant with the policies underlying this parental obligation.
The duty to pay for a child’s college education in certain circumstances results from a balancing of competing policies ... 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., 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 ... 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 his support ... 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. But this is not such an exceptional case.

DeWalt, 365 Pa.Super. at 289-90, 529 A.2d at 513-14. Judge Wieand and I both look to the same language in DeWalt, supra. However, my examination of the principles set forth in the quoted passage leaves me unsettled. While the DeWalt panel declares that the rule of twenty-three “is not an arbitrary number plucked indiscriminately from the judicial hat,” I find no objective findings to support it.

I take exception to the bald assertion that, in these times, any young adult who has “shown the requisite interest” will have “his degree in hand” by the age of twenty-three. There is nothing in the DeWalt opinion to demonstrate that panel was relying on any evidence in the record to reach that conclusion. I have knowledge of too many fine young women and men who, for a myriad of sound reasons, have been unable to complete their first post-secondary degree within four years. To require that they should be made to demonstrate “exceptional circumstances,” is beyond my comprehension. The DeWalt panel mentions only two examples of “exceptional cases”: (1) where the parent(s) refused to pay support, and (2) where the student’s illness prevented completion of the program within four years. Id. As this case is being decided, the cost of a college education in these United States, and, yes, in Pennsylvania, is moving inexorably upward such that the number of women and men who can gather the resources to sustain four, uninterrupted years of college education continues to dwindle.

My argument is not that we replace the rule of twenty-three with some other arbitrary number, but that we recognize the lack of any empirical support for the rule, as well as the non-necessity of the rule, and abolish it.

Turning to Brown, supra, we search in vain for the language, or the “rule”, which DeWalt tells us forms the basis for its declaration. In Brown, the panel was asked to decide whether a father may be compelled to provide support and medical insurance coverage to a son enrolled in law school. The Brown panel expressly found that the father had fulfilled his responsibility to support his son through college, found the son to be “an emancipated adult child”, and concluded that the recognized obligation to support a child through “college” does not include law school. The very clear holding of the Brown court was:

We find, therefore, that no duty of support is owed appellee by his father as no showing of dependency has been made, nor does law school qualify as college such as to continue appellant’s obligation to support his son.
The Order of the Lower Court is reversed.

Brown, 327 Pa.Super. at 56, 474 A.2d at 1170.

Either finding — that of emancipation or that “college” does not include law school — was sufficient, alone, to decide the Brown case. 23 Pa.C.S. § 4323(a); Maurer v. Maurer, 382 Pa.Super. 468, 555 A.2d 1294 (1989), appeal denied 522 Pa. 596, 562 A.2d 320 (table, No. 035 M.D.1989). The only reference to age included in the Brown analysis occurs within the context of whether the law student-son was emancipated. The court stated:

In the first instance the disadvantages under which appellee labors are those of an adult and are being borne by an adult; the fact of appellant’s substantial financial resources is irrelevant. And while Hirsch, [Commonwealth ex rel Schulberg v. Hirsch, 236 Pa.Super. 179, 344 A.2d 530 (1975) ], might buttress the notion of appellee’s putative dependency were his age or educational attainments less, here the equation of student status and physical or mental incapacity is inapposite. Even the scarce authority for the theory that a full-time student is a dependent adult [see, e.g., In Re: Locke, 3 Fam.L.Rep. 2097 (1976) ] has not been extended to a child beyond age 22.

Brown, 327 Pa.Super. at 54-55, 474 A.2d at 1170 (second bracketed material in original, footnote omitted). The law student-son in Brown was only twenty-two when the order directing monthly support was entered and this was known to the Brown panel Id., 827 Pa.Superior Ct. at 58, 474 A.2d at 1169. Therefore, even if that court had stated, as the DeWalt court suggests, that a parent’s obligation to pay college expenses may not be extended past the child’s twenty-third birthday, it could have been nothing more than dictum, given the facts of the Brown case, i.e., a twenty-two year old law student.

In Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989) appeal denied 524 Pa. 621, 571 A.2d 888, an en banc panel of our court, relying on DeWalt, and Brown, supra, remanded the ease to the trial court for further hearing concerning the entitlement of a twenty-three year old daughter to support. The remand was thought necessary since this court’s opinion in DeWalt — which opinion the Griffin court understood made explicit the need for a showing of exceptional circumstances where college expenses are sought past a child’s twenty-third birthday was not filed prior to the submission of stipulated facts and argument to the Griffin trial court. The Griffin majority, in a footnote, recognized that the Brown case did not involve the establishment of any age limit upon a parent’s obligation to pay for a child’s college education. Griffin, 384 Pa.Super. at 197-98 n. 5, 558 A.2d at 80 n. 5.

In a dissenting opinion in Griffin, Judge Wieand argued that the remand was inappropriate because the twenty-three year old child had elected to discontinue her college enrollment and enter the work force, thereby becoming emancipated. Judge Wieand contended that her subsequent return to a different school to follow a different course of study could not revive parental liability for support following emancipation. Judge Wieand’s foeus on whether the child in Griffin had been emancipated was entirely correct.

In Emrick v. Emrick, 445 Pa. 428, 430 31, 284 A.2d 682, 683 (1971) our Supreme Court approved the principle consistently enunciated in this court that a father [parent] has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself. More recently, our Supreme Court has adopted the rule that a limited duty to provide college education arises only if (a) the child shows a willingness and aptitude to undertake the studies and (b) the parent can provide the necessary funds without hardship to himself or herself. Sutliff v. Sutliff, 515 Pa. 393, 407, 528 A.2d 1318, 1325 (1987) affirming and remanding 339 Pa.Super. 523, 489 A.2d 764 (1985).

With these legal principles in place and well accepted, I struggle to find a rationale for imposing an additional rule requiring the showing of “exceptional circumstances” when the adult is beyond age twenty-two. If the rules regarding emancipation and college expenses are correctly applied, the burden remains with the adult and the same proof is required, whether it is labeled “exceptional” or not. With the burden of establishing non-emancipation already on the adult student by virtue of the student’s majority status, the right to receive support while in college cannot reasonably depend upon an additional date on the calendar. I am unaware of any other jurisdiction that has even considered the necessity for such a rule. Based upon my review of the only Pennsylvania cases dealing with the subject, I must reluctantly conclude that the artificial rule of age twenty-three is, indeed, nothing more than “an arbitrary number plucked indiscriminately from the judicial hat.” DeWalt, 365 Pa.Super. at 289-90, 529 A.2d at 513. To the extent that the rule continues to influence the disposition of support cases involving expenses for college education, it should be revisited and abolished.

Returning to the case before us, I believe Lisa established to the trial court’s satisfaction that she was both able and willing to pursue successfully a college education. The father, appellant before us, does not argue that providing the necessary funds would result in any hardship upon him. Lisa is working thirty hours a week during school in an effort to defray her expenses. The delay in graduation, which results in a delay in entering the full-time employment market, is attributed to factors which are supported in the record and have been accepted by the trial court. I find no need to identify “exceptional circumstances”, simply because Lisa has passed her twenty-third birthday.

I would affirm the order directing that the father provide funds for all of his daughter’s expenses for tuition and books, without requiring any particularized, special circumstances related to the age of the unemancipated daughter.


author: TAMILIA, Judge: FORD ELLIOTT, Judge,

text:
    604 A.2d 738
    Thomas McCUE v. Diane McCUE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1992.
    Filed March 10, 1992.

      James V. Fareri, Stroudsburg, for appellant.
    Peter O’Donnell, Wilkes-Barre, for appellee.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Appellant, Diane McCue takes this appeal from the February 28, 1991 Order denying her petition requesting appellee, Thomas McCue, to submit to HLA (human leukocyte antigen) blood tests. The parties were married on September 19, 1981 and resided together until they separated on June 21, 1990, when appellant left the marital residence with the three children bom during the marriage. Matthew, bom on August 8, 1989, is at the center of this controversy.

In approximately the first week of July, 1990, appellant informed appellee she believed he was not Matthew’s father. When appellee encountered difficulties in attempting visitation with the children, he filed a petition for partial custody on or about July 2, 1990 in Luzerne'County. On or about July 25,1990, appellant filed a reciprocal complaint in support in Susquehanna County, where she was then residing. Thereafter, a custody Order was entered on October 26, 1990, granting partial custody of all three children to appellee. Appellant filed a petition for HLA testing on December 17, 1990, and a hearing was held before the Honorable Chester B. Muroski of the Court of Common Pleas of Luzerne County on February 27,1991. During the hearing, appellant testified she began a “physical relationship” with David Maginley in November, 1988, and she believed Maginley was Matthew’s natural father. Although appellant testified she decided in approximately November, 1989 to leave her husband and move in with Maginley, she did not leave until June, 1990. Appellant further testified she continued to engage in sexual intercourse with her husband, but that he always used condoms. Appellee testified he was currently paying support for the three children. He also testified he lived continuously with his wife from the time of their marriage until they separated, and that she gave him no warning prior to leaving the marital home with the children. Appellee further testified that he and appellant engaged in sexual relations regularly throughout their marriage and approximately twice a week during the time Matthew was conceived. Appellee denied using condoms during this period.

Following the hearing, the trial court entered the Order from which this appeal is taken. The sole question presented for our review is whether the trial court erred in refusing to compel appellee to submit to HLA blood tests under the Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S. § 5104.

The Uniform Act on Blood Tests states:

Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S. § 5104(c). “While the Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests.” Donnelly v. Lindenmuth, 409 Pa.Super. 341, 344, 597 A.2d 1234, 1235 (1991).

The presumption that a child born to a married woman is a child of the marriage, and therefore of the woman’s husband, is one of the strongest presumptions known to the common law. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert, denied, — U.S. —, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Donnelly, supra; Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990). “Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had no access to his wife during the relevant period.” Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2338, 2342, 105 L.Ed.2d 91, 107 (1989), rehearing denied, 492 U.S. 937, 110 S.Ct. 22,106 L.Ed.2d 634. The presumption can be overcome only by clear and convincing evidence to the contrary. John M. and Donnelly, supra. We agree with the trial court that appellant has provided no clear and convincing evidence to rebut the presumption, and we find no error in the trial court’s resolution of the issue of credibility in favor of appellee.

Appellant relies upon the decision of a panel of this Court in the recent case of Faust v. Faggart, 406 Pa.Super. 357, 594 A.2d 660 (1991). Appellant contends Faust holds:

[T]he “presumption of legitimacy” is not a black letter presumption to be applied across the board in all situations where children are born during a marriage, but rather concerns public policy considerations which must be carefully considered and weighed under the facts of each case in order that an appropriate decision might be made as to whether blood tests are appropriate. Under Faust, and the line of cases cited therein, a presumed father may negate the presumption of legitimacy by the use of blood tests.

(Brief of Appellant at 14.) This analysis of Faust would improperly expand the law and apply the law in a manner different from that which has gone before. The presumption of legitimacy is always the starting point in a contest involving the parentage of a child born during coverture. The Faust court, in dicta, was over-broad in stating that only a few years ago the appellant therein would have been found to have a right to obtain blood tests of himself, the mother and the child and to use the results of those tests to attempt to rebut the presumption and avoid a support obligation. This statement was based on the deviation by two cases inferred from the original holdings in Commonwealth v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), and Commonwealth v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). Goldman held that despite what appeared to be new avenues for a husband to question the paternity of his wife’s children, that right is not unlimited. “Where the husband has accepted his wife’s child and held it out as his own over a period of time, he is estopped from denying paternity.” Id., 199 Pa.Superior Ct. at 283, 184 A.2d at 355. In Goldman, the husband apparently never held the children out as his own since he left his wife approximately three months after the birth of the second child and the third child was conceived and bom subsequent to the separation. Since estoppel was not applicable the blood test was admissible as a “proceeding to establish paternity.” Weston, with the same members of the court deciding and the same judge (Woodside, J.) authoring the Opinion as in Goldman, reaffirmed the estoppel doctrine by holding the husband’s petition for a blood test must be denied where he had lived with his wife for several years after the birth of both children. “There is no suggestion that he did not accept them as his children prior to filing his petition.” Weston, supra, 201 Pa.Superior Ct. at 557-58, 193 A.2d at 783. In Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986), and Parenti v. Parenti, 263 Pa.Super. 282, 397 A.2d 1210 (1979), this Court, treating Goldman as creating a new means of rebutting the presumption of legitimacy, held the blood test could be used for that purpose. Faust recognizes these cases derived no support in subsequent rulings by our Supreme Court and are of questionable validity.

Three issues commonly arise in cases concerning paternity when the marriage of the mother and presumed father is a fact which becomes controlling. First is the presumption of legitimacy (or child of the marriage). Cases which ruled on this presumption attribute to it the status almost of substantive law, which must be rebutted by clear and convincing evidence before a blood test is relevant. Michael H., Donnelly, John M. and Scott, supra; Ware v. McKnight, 368 Pa.Super. 502, 534 A.2d 771 (1987); Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Ermel v. Ermel, 259 Pa.Super. 219, 393 A.2d 796 (1978); Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976).

Secondly is the estoppel of a parent from testifying to paternity by a person other than the husband or rebuttal of the presumption of legitimacy. Seger, Weston and Goldman, supra. This occurs when the parents, in the course of the marriage and thereafter, treat the child as their own and subsequently one or the other attempts to repudiate paternity.

Finally is the issue of collateral estoppel or res judicata. Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Adoption of Young, supra; and Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964). These cases hold that a legal determination of paternity for custody or support purposes, unappealed from, forecloses any further litigation on that issue. The remaining cases are anomalies which held a blood test may be used to rebut the presumption of legitimacy; Nixon and Parenti, supra, and dicta in Jones, supra, which ignored John M., supra. The only softening of the commonlaw rule applies primarily to the ability of parent to testify as to non-access. Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975). (Because the rule prohibiting a parent to testify to non-access no longer has validity and "lacks a basis in good sense or in sound public policy, we are compelled to abandon its dictate.” Id., 235 Pa.Superior Ct. at 566, 344 A.2d at 627.) Thus the prohibition against a parent testifying to non-access is no longer applicable in cases where paternity is at issue.

From our analysis of the relevant case law, it is clear that the blood test itself may not be used to rebut paternity in the first instance as has been stated in Nixon and Parenti, supra. Following rebuttal of the presumption the child is a child of the marriage by clear and convincing evidence, the blood test becomes relevant to determine parentage (§ 5104(f), (g)), and as increasingly is the case, to establish the probability that a party is or is not the parent of the child. The necessity to follow the commonlaw requirement of proving non-access or impotence has not been eliminated by enactment of the blood test act. Michael H. and John M., supra. The only relaxation of the common-law rule as to rebutting the presumption of legitimacy is the requirement that a parent could not “bastardize” his/ her child by testifying to non-access. Savruk, supra.

Faust is factually inapposite to this case, and, in any event, we find this case governed by the Supreme Court’s decision in John M., supra, and our prior decision in Scott, supra. In Faust, supra, the parties had been married and were divorced. Subsequently, the mother initiated a support action against her former husband, the alleged father, who denied paternity and sought blood tests of himself, the mother and the child. The Faust court found the case distinguishable from John M. and Scott because the blood tests sought were of those parties specifically enumerated in section 5104(c), “the mother, child and alleged father,” and also because the policy considerations set forth in John M. and Scott were not present where there was no intact family to preserve. Faust, supra, 406 Pa.Superior Ct. at 367, 594 A.2d at 665. Faust, however, may not be extended to hold that when the family was intact during conception and/or birth, followed by a separation or divorce, the mere fact of separation or divorce having destroyed the unity of the family permits one or the other parent, for that reason alone, to request a blood test in aid of rebuttal of the presumption of legitimacy. In John M., supra, Chief Justice Nix, in a concurring opinion joined in by the entire Court, stated the following:

Irrespective of the legal title given this presumption (whether it be “presumption of legitimacy” or the presumption that the child bom is the “child of the marriage”), it should remain clear that a child bom to a married couple will be presumed to be the issue of the husband. That presumption can be overcome only by proof of facts establishing non-access or impotency. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). It continues to be one of the strongest presumptions within our law. Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969); Cairgle, supra; Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1958).
The Superior Court erred for the presumption is absolute. The Act does not relax the presumption that a child bom to a marriage is a “child of the marriage”; it merely provides a mechanism through which an alleged father can accumulate evidence of paternity.

Id., 524 Pa. at 322, 571 A.2d at 1388 (emphasis added). As a result, we find Faust inapplicable to the disposition of this case, and we reach our decision based on the estoppel principles and public policy considerations of John M. and Scott.

In John M., supra, the Supreme Court stated:

[Ujnder certain circumstances, a person might be es-topped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child. The classic example of this principle is where a man who has lived with a woman and her children for a number of years and has held himself to the world as the father of said children, may be estopped from seeking court-ordered blood tests in a belated attempt to deny paternity. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted.

Id., 524 Pa. at 318, 571 A.2d at 1386 (citations omitted); see also 48 P.S. § 167. While stated as dicta in John M., we find the estoppel doctrine is compelling in this case.

In the case before us, Matthew McCue was bom on August 8, 1989 while the parties were married and living together with their other two children. Appellee assisted in the delivery of the baby and took the child into his home after its birth. The parties and their children then lived together as a family until they separated on June 21, 1990. Were this conduct not sufficient evidence that both parties held appellee out as the father, we also note appellant’s complaint in support averred the parties were the parents of all three children. Appellee has never disputed these facts or averments and voluntarily made support payments for his children. Clearly, appellant is estopped from denying appellee’s paternity, for it is not “plausible ... for a mother, after separation, to be able to disclaim a child as being that of her husband when the child was conceived during marriage and they have lived in a family relationship in which the husband apparently held out the child to be his own.” Christianson v. Ely, 390 Pa.Super. 398, 408, 568 A.2d 961, 966 (1990). When a parent is estopped from denying paternity and the presumption of legitimacy has not been rebutted, paternity is not a relevant fact, id., and our review ceases. If this were not enough, appellant is precluded from pursuing this action because in the earlier support and custody actions, which resulted in a final Order not appealed, the legal determination of paternity was established and may not now be litigated under the doctrine of collateral estoppel or res judicata. See Coburn, Adoption of Young and Nedzwecky, supra.

Based on the foregoing analysis, this Court need not restate the compelling public policy considerations supporting our decision, except to reaffirm that they involve substantial “rights and interests of others involved in and affected by its decision, namely the mother, her husband, the family unit and the Commonwealth. When we factor in those rights and interests, we find that the scales weigh heavily ... against court-ordered blood tests.” John M., supra, 524 Pa. at 315-17, 571 A.2d at 1385. We also reaffirm our prior holding that John M. “applies to any situation in which a party attempts to rebut the presumption that a child born to a married woman is the child of that marriage.” Donnelly, supra, 409 Pa.Superior Ct. at 346, 597 A.2d at 1236.

Order affirmed.

FORD ELLIOTT, J., concurs.

FORD ELLIOTT, Judge,

concurring.

I concur in the result reached by the majority. However, I would affirm on the basis of the rationale expressed in Faust v. Faggart, supra and John M. v. Paula T., supra. Similar to John M., the facts in the instant case represent an irrebuttable presumption of paternity. The child was born into an intact family and the presumed father has at all times held himself out as the father of the child. As noted in Faust, paternity is no longer a relevant fact in any proceeding regardless of whether it is instituted by a purported father, a presumed father or a natural mother. Therefore, consistent with the rationale in Faust and John M., I find this case to be factually distinguishable from Nixon, supra, Parenti, supra, and Jones, supra, where only a rebuttable presumption was established. In Nixon, a child was conceived after the married parties had separated and been living in different states for years. In Parenti, a child was conceived one month after the married parties had separated and was born six months after their divorce was granted. In Jones, a child was born during the marriage between husband and wife, however, sexual relations had ceased between the parties. Shortly after the birth of the child, the husband and wife separated and the parties were subsequently divorced. I consider that in these cases, blood test results were properly admitted as would have been any evidence of non-access or impotency to rebut the presumption of paternity which was premised solely on the existence of a marriage in name only.


author: WIEAND, Judge:

text:
    604 A.2d 743
    Terry A. WATKINS and Sandra D. Watkins, his wife, Appellants, v. J.E. SHAFFER COMPANY, a corporation; National Supply Company, a corporation; Continental EMSCO, a corporation; and LTV Energy Products Company, a corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed March 13, 1992.

      Jay N. Silberblatt, Pittsburgh, for appellants.
    William M. Adams, Pittsburgh, for appellee Shaffer Co.
    Ronald W. Crouch, Pittsburgh, for appellees Nat. Supply and Continental Emsco.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge:

The trial court order to be reviewed in this appeal transferred venue from Allegheny County to Venango County for the convenience of parties and witnesses. After careful review, we affirm.

Terry Watkins sustained work related injuries while working in Venango County as part of an oil drilling operation on October 13, 1985. The accident was allegedly caused while Watkins was working with a chainbinder or come-along which he was using to adjust guy wires intended to stabilize a portable oil drilling rig. He filed an action in Allegheny County, alleging strict liability against J.E. Shaffer Company, an Oklahoma corporation; National Supply Company, a Texas corporation; Continental Emsco, a Delaware corporation; and LTV Energy Products Company, a Pennsylvania corporation. Shaffer and National do not have offices in Pennsylvania and were served by registered mail. Emsco and LTV were served in Allegheny County. Before the case could be tried, however, Emsco and LTV went into bankruptcy, and the action against them, therefore, has been stayed. After discovery had been completed and prior to trial, National filed a petition under Pa.R.C.P. 1006(d)(1) in which it requested that venue be transferred to Venango County for the convenience of parties and witnesses. The trial court granted this petition, and Watkins, the plaintiff, appealed.

Pa.R.C.P. 1006(d)(1) permits the court in which an action is pending to transfer the action to another county for the convenience of parties and witnesses. The rule vests considerable discretion in the trial court to determine whether venue should be changed, and an exercise of such discretion will be reversed only for an abuse thereof. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 81, 461 A.2d 805, 806 (1983). So long as venue is laid consistently with the Rules of Civil Procedure, the choice of a forum by the plaintiff is entitled to weighty consideration. Okkerse v. Howe, 521 Pa. 509, 517, 556 A.2d 827, 832 (1989). The right of a plaintiff to choose a forum, however, is not absolute. The forum non conveniens provision of Pa.R.C.P. 1006(d)(1) is a necessary counterbalance to insure fairness and practicality. Okkerse v. Howe, supra, 521 Pa. at 518, 556 A.2d at 832; Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). In general, the plaintiffs choice of forum will not be disturbed

“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ [but] unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.”

Reyno v. Piper Aircraft, Co., 630 F.2d 149, 159 (3d Cir.1980), citing Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) and Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); cited with approval in Korn v. Marvin Fives Food Equipment, 362 Pa.Super. 559, 563, 524 A.2d 1380, 1384 (1987). See also: Okkerse v. Howe, supra 521 Pa. at 518, 556 A.2d at 832.

The trial court was required to consider and act upon facts which included the following: The plaintiff is a resident of Indiana County. The accident occurred in Venango County. The place of business of plaintiff’s employer is in Indiana County. The equipment alleged to have caused plaintiff’s injuries was manufactured in Oklahoma by a corporation having neither employees nor physical presence in Pennsylvania. The equipment was allegedly sold to plaintiffs employer by one of the three remaining defendants. However, Continental Emsco and LTV Energy Products are in bankruptcy, and National Supply Company is a Texas corporation which does not now and never has had an officer or place of business in Allegheny County. Although it does not appear that there are any disinterested, eyewitnesses who saw the accident, none of the members of plaintiff’s crew live in Allegheny County. Indeed, no resident of Allegheny County has been identified by any party as a fact witness. Following the accident, plaintiff received emergency treatment at the Franklin Regional Medical Center in Venango County and was treated by physicians who lived and practiced medicine in Venango County.

Under these circumstances, the trial court determined that it would be more convenient to parties and witnesses if the case were tried in Venango County. The trial court also determined that Allegheny County had no interest in the litigation and that its citizens should not be burdened with the cost in time and money of a trial in Allegheny County. In this respect, the trial court observed:

Of further concern is the expense of trial placed on the taxpayers of Allegheny County in a case whose only connection to Allegheny County is the location of the office of the Plaintiffs’ lawyers a city block from the Courthouse. The convenience of the lawyer is no where listed as a consideration in Okkerse. In an estimate prepared by the Administrative Office of the Allegheny County Court of Common Pleas that is some ten years old, without any inflation factor added for present cost, it costs Allegheny County approximately $1,000.00 a day to provide the physical facilities for a trial courtroom with supporting personnel, supplies and jury expense. This incident occurred out of oil drilling, an economic activity beneficial to Venango County and not Allegheny County. The expense of the trial should be properly borne by the taxpayers of Venango County.

We perceive no abuse of discretion in the trial court’s decision to transfer venue to Venango County.

Appellant argues, however, that two years earlier a petition for change of venue by Shaffer had been denied by another judge in Allegheny County and that his decision should not have been overruled by the present order. The present petition, however, was not presented by Shaffer but by National Supply Company. More importantly, in the intervening two year period in which discovery was conducted, additional facts were developed which demonstrated clearly that Allegheny County had no interest in a trial involving an accident in Venango County, a plaintiff who resided in Indiana County, two defendants who were foreign corporations without a place of business in Allegheny County and no fact witnesses who resided in Allegheny County. Under these circumstances, we cannot say that the calendar control judge in Allegheny County erred by transferring venue to the county in which the accident occurred and which had a direct interest in the litigation to be tried.

Appellant also contends that the calendar control judge erred when he entered an order without a prior evidentiary hearing. Where there are disputed facts, a trial court can make adequate findings only on the basis of evidence produced by hearing or depositions. See: Okkerse v. Howe, supra, 521 Pa. at 518, 556 A.2d at 832; Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984). In the instant case, however, there had been extensive discovery conducted, and from the depositions and answers to interrogatories the court was able to make a determination of the facts necessary to an intelligent decision on National’s petition for change of venue.

Finding neither procedural error nor abuse of discretion, the order of the trial court which transferred venue must be, as it is,

Affirmed.


author: OLSZEWSKI, Judge:

text:
    604 A.2d 1033
    Edward H. ROTH, Executor of the Estate of Larry D. Roth, Deceased, Appellee, v. Nancy L. ROTH, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed Feb. 10, 1992.
    Reargument Denied April 16, 1992.

      Lenora M. Smith, Harrisburg, for appellant.
    Ann E. Rhoads, Harrisburg, for appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Cumberland County granting specific performance of a marriage separation/settlement agreement. Appellant has been ordered to pay to appellee the pension death benefit appellant received from her ex-husband’s pension fund. Appellant entered a separation/settlement agreement with her now deceased ex-husband, which agreement provided that the parties would release all interest in the other’s pension benefits. Since we find that the trial court properly granted specific performance, we affirm the judgment of the trial court.

A discussion of the case follows. Appellant, Nancy L. Roth, was married to decedent Larry D. Roth. During the course of said marriage, Larry D. Roth designated his then wife as beneficiary for his pension death benefit. Both appellant and decedent were employed during the marriage at the Navy Ship’s Parts Control Center in Mechanicsburg, Pennsylvania, and therefore had similar pensions.

The marriage ended in divorce in 1986. In furtherance of the divorce, the parties entered into a separation/settlement agreement. Neither party has contended on appeal that the agreement is unenforceable. Further, our review of the agreement indicates that it is enforceable and that both parties were represented by counsel when the agreement was entered. The agreement specifically provides for any potential claims against retirement benefits in paragraph twenty-three:

23. Retirement/Profit-Sharing/Pension Plans Each of the parties hereto generally and specifically mutually releases the other from any interest he or she may have in the other’s retirement, pension and/or profit-sharing plans of any nature and kind whatsoever.

After the death of Larry Roth in 1990, it was learned that the beneficiary designation for his pension death benefit was never changed. The beneficiary named was Larry Roth’s ex-wife, appellant. Appellant received the pension death benefit and that money is being held in escrow by appellant’s former counsel, Herbert C. Goldstein. When appellant and Larry Roth’s executor could not reach an agreement regarding the disposition of these funds, this action resulted. Judge Hess of the Court of Common Pleas of Cumberland County entered a decree nisi granting specific performance of the separation/settlement agreement.

Appellant argues that the lower court erred in granting specific performance of the separation/settlement agreement in three regards. First, appellant argues that the lower court erred in concluding that she waived her right to take decedent’s pension death benefit by entering into the separation/settlement agreement. Second, appellant argues that the lower erred in concluding the pension death benefit was a pension benefit. Third, appellant contends that the language in the separation/settlement agreement is merely a general release which will not waive the beneficiary designation. Since we find no merit to any of appellant’s arguments, we affirm the judgment of the lower court. We take up each of appellant’s arguments below.

Appellant’s first argument is that the lump sum pension death benefit was not property subject to the marital relationship and therefore not within the scope of the property covered by the separation/settlement agreement. Appellant contends the parties did not intend to have the agreement effect a change in any property rights outside those subject to the marital relationship. We find otherwise.

We look to the terms of the agreement itself to determine the intentions of the parties. Lipschutz v. Lipschutz, 391 Pa.Super. 537, 571 A.2d 1046 (1990).

A property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally.

Wertz v. Anderson, 352 Pa.Super. 572, 579, 508 A.2d 1218, 1221-1222 (1986). When construing a property settlement agreement, the court “must adopt that construction which gives effect to the parties’ reasonable and probable intent, in view of the surrounding circumstances and purposes of the contract.” Litwack v. Litwack, 289 Pa.Super. 405, 407, 433 A.2d 514, 515 (1981) (citations omitted).

Appellant’s argument presents a correct legal analysis of the source of the right to the lump sum pension death benefit. Legally the right to the death benefit arises not from the marital relationship, but from the contractual beneficiary designation between the deceased and his former employer. However, our inquiry does not end here, the question is whether the right to the lump sum pension death benefit, which arises from the beneficiary designation, falls within the separation/settlement agreement.

Reviewing the agreement, it becomes apparent that it is a broad agreement designed to settle all of the parties’ property claims. We believe the reasonable and probable intent of the parties was to settle all property claims in a single comprehensive agreement.

Appellant’s argument is that the parties intended to only release the pension, retirement and/or profit-sharing plans to the extent they were dependent upon marriage. We do not believe the parties intended that the agreement have such a narrow impact. A person skilled in the law may very well have distinguished the source of the right to the lump sum pension death benefit and entered this agreement with the intention that the death benefit was not included. We believe, however, that a lay person entering into a comprehensive separation/settlement agreement, which includes a provision wherein each party has relinquished any claim to the other party’s pension benefits, would only conclude any lump sum death benefit was included. We believe this was the reasonable and probable intent of the parties when they entered into this agreement. The lower court was correct in finding that the parties waived any interest in each other’s pension plan, and that at Larry Roth’s death his interest was his death benefit. Since the pension death benefit falls within the scope of the separation/settlement agreement, appellant’s first argument is without merit.

Appellant next argues that the lump sum pension death benefit was not a pension benefit and therefore not included in the agreement. Appellant is mistaken. The money paid to appellant as a lump sum death benefit clearly reflected the decedent’s pension. Further, appellant has offered no explanation of the source of the $23,000.00 she received if it did not reflect a lump sum payment on the decedent’s pension plan.

Appellant argues that the lump sum pension death benefit is not a retirement benefit based upon 5 C.F.R. § 831.-1703. Under 5 C.F.R. § 831.1703, employee retirement benefits do not include lump sum benefits such as the one involved in this case. However, the definition of employee retirement benefits in 5 C.F.R. § 831.1703 is specifically limited in applicability to Subpart Q — Court Orders Affecting Civil Service Retirement Benefits, 5 C.F.R. §§ 831.1701-1718. To determine the coverage of Subpart Q, we must look to 5 C.F.R. § 831.1701, entitled purpose:

This subpart regulates the Office of Personnel Management’s adjudication of claims arising out of State court orders that affect civil service retirement benefits. The Office of Personnel Management (OPM) must comply with qualifying court orders, decrees, or court-approved property settlements in connection with divorces, annulments of marriage, or legal separations of employees, Members, or retirees that award a portion of a former employee’s or Member’s retirement benefits or a survivor annuity to a former spouse. This subpart prescribes the procedures to be followed by—
(a) A former spouse when applying for benefits based on a court order under sections 8345(j) or 8341(h) of title 5, United States Code; and
(b) The Associate Director in honoring court orders and in making payment to the former spouse, (emphasis added).

Subpart Q does not cover the payment of lump sum pension death benefits. Subpart T — Payment of Lump Sums, 5 C.F.R. §§ 831.2001-2010, controls the payment of lump sum benefits and contains no definition of retirement benefits. We believe appellant cited the definition above out of context, in a situation where it is not applicable. Since the lump sum payment was clearly a pension benefit, we find appellant’s argument to be without merit.

Appellant’s third argument is that the decision of the lower court is contrary to the decision of this Court in Equitable Life Assurance v. Stitzel, 299 Pa.Super. 199, 445 A.2d 523 (1982). Appellant contends that Stitzel stands for the proposition that the beneficiary designation must be specifically waived in the property settlement agreement. Appellant is mistaken.

Stitzel involved the beneficiary designation in an insurance policy. The parties in Stitzel entered into a property settlement agreement which provided in pertinent part that the parties would waive, “any and all claims, ... actions, causes of action ... of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by said other party prior to and including the date hereof — ” Stitzel, 299 Pa.Superior Ct. at 201, 445 A.2d at 524. The Court found that such general language in the property settlement agreement was insufficient to waive the designation of beneficiary. We believe Stitzel was correctly decided.

In the case before the Court, the parties specifically provided that each would have no rights in the pension of the other. We believe that such a clear and direct handling of each party’s pension rights works to revoke the beneficiary designation. This decision is not in contradiction with Stitzel. Although general language in a separation/settlement agreement will not revoke a beneficiary designation, the language in this case is not general. The parties here specifically provided that, “[e]ach of the parties hereto generally and specifically mutually releases the other from any interest he or she may have in the other’s retirement, pension and/or profit sharing plans of any nature and kind whatsoever.” This language is sufficiently specific to revoke the beneficiary designation. Since the decision of the lower court is not in contradiction with Stitzel, appellant’s argument is without merit.

Since we find no merit to appellant’s arguments, we affirm the judgment of the trial court.

      . We note that a final judgment has been entered from the order granting specific performance and, therefore, this matter is ready to be considered on its merits.

      . We note that appellant also received her now deceased ex-husband’s final compensation. Neither party has raised an issue regarding the lower court’s handling of the final compensation.

      . The following are excerpts of the separation/settlement agreement:
      Whereas, the parties desire to confirm their separation and make arrangements for the settlement of their property rights and all other rights and obligations growing out of the marriage relationship;
      Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself and herself and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights, or demands whatsoever in law or in equity, which either of the parties ever had or now has against the other____