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HomeMy WebLinkAbout01-161 SUPPORTMARY J. PEIFFER, PLAINTIFF V. LANCE L. GRAHAM, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PACSES NO. 464103081 161 SUPPORT 2001 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., December 13, 2001 :-- On February 21, 2001, plaintiff, Mary J. Peiffer, filed a complaint against defendant, Lance L. Graham, for the support of defendant's son, Brian Graham, born October 19, 1982. Plaintiff is Brian's maternal great aunt. On March 30, 2001, following a hearing before a Domestic Relations Officer, an order was entered directing defendant to pay plaintiff support for Brian in the amount of $350 per month, effective February 21, 2001. On April 10, 2001, an order was entered effective April 5, 2001, suspending the child support because Brian was no longer living with plaintiff. The order provided that defendant's wages would remain garnished until the arrears were satisfied. On April 11, 2001, defendant filed an appeal from the order entered on March 30, 2001. On June 25, 2001, an order was entered that "[t]he within case is dismissed." On September 10, 2001, defendant filed a petition seeking the refund of all monies paid pursuant to the support order of March 30, 2001. A hearing was held on October 8, 2001. On October 9, 2001, an order was entered, stating: [t]he appeal of Lance L. Graham from the entry of a support order on March 30, 2001, requiring him to pay $350 per month support, effective February 21, 2001, 161 SUPPORT 2001 for Brian Graham, born October 19, 1982, IS SUSTAINED. The support order IS VACATED effective February 21, 2001.4 IT IS ORDERED that Mary J. Peiffer shall pay Lance L. Graham the $810 that he paid to her through the DRO for the support of Brian under the order of March 30, 2001.2 (Emphasis added.) ~ No support could be legally imposed against defendant for the support of Brian Graham. Elkin v. Williams, 755 A.2d 695 (Pa. Super. 2000). 2 The remedy set forth in Elkin v. Williams, supra, when a support order is vacated on appeal, is the reimbursement for all money paid under the order. On November 6, 2001, plaintiff filed a direct appeal from the order entered on October 9, 2001. In a concise statement of matters complained of on appeal, plaintiff avers that the court erred: 1. [i]n failing to find that the Defendant had a duty to support his child, where that child was forced from the parents [sic] home by the parents [sic] behavior and mistreatment of the child? 2. [w]hen it found that standing was lacking in a Plaintiff who provided care and support to her nephew, the child in question, where the child was over 18 years of age, where the child was still enrolled in and attending school, and where the child was forced by the child's parent's [sic] actions and behavior to seek shelter with Plaintiff. The evidence at the hearing on October 8, 2001, was as follows. Defendant lives with his wife and their two children in Carlisle. His son Brian is by his first wife. In December, 2000, Brian had been living with defendant for approximately seven years. He was 18 years old, and in the 11th grade in the South Middleton School District. Shortly before Christmas, Brian had a picture of his mother displayed in his room. Defendant's wife threw the picture away because Brian violated a rule of the house that he could have a picture of his mother only as long as it was kept out of sight. After arguing with his stepmother about the incident, -2- 161 SUPPORT 2001 Brian left home and moved in with a friend. He then moved into the home of his paternal grandmother. The paternal grandmother and grandfather, and Brian's mother, then asked plaintiff if Brian could live with her because he was having problems with his father and stepmother. Plaintiff, age 65, had only met Brian once, on July 4, 2000. Plaintiff lived in the South Middleton School District which would allow Brian to continue in his 11th grade class. Plaintiff agreed that Brian could live with her, and he moved into her home on January 8, 2001. He continued to go to high school. No one made any contributions to plaintiff for Brian's support. Plaintiff instituted a support action against defendant and Brian's mother on February 21, 2001. An order was entered directing the mother, as well as the father, to pay support for Brian. Brian's mother lived in York County. On April 5, 2001, the mother moved Brian out of plaintiff's home, and into her home. The mother then enrolled him in a GED program. DISCUSSION We felt bound by the decision of the Superior Court of Pennsylvania in Elkin v. Williams, 755 A.2d 695 (Pa. Super. 2000), in entering the order of October 9, 2001, directing that plaintiff pay to defendant the $810 that defendant had paid her for the support of Brian under the order of March 30, 2001. The facts in Elkin were: [M]other and Emmanuel resided in Marion Center where Emmanuel attended Marion Center High School. Mother subsequently moved to Lancaster, Pennsylvania, with her new husband while Emmanuel chose to continue to reside alone in Mother's home in Marion Center in order to complete his secondary education. Emmanuel, born December 28, 1980, turned eighteen years of age on December 28, 1998, during his junior year of high school. In March 1999, the electricity at Mother's home in Marion Center -3- 161 SUPPORT 2001 was turned off due to unpaid bills. At this point, Emmanuel, upon his own initiative, moved in with Elkin, a family friend. Mother at this time requested Emmanuel to reside with her in Lancaster, which he refused to do based upon his desire not to change schools. He further pointed out to Mother that he was now legally an adult and did not have to abide by her wishes. Although subsequently the electricity was turned back on at Mother's residence, Emmanuel did not move back to Mother's house. Mother had, at an unknown time, prepared a notarized letter granting temporary custody of Emmanuel to Elkin during her absence. (Emphasis added.) On May 4, 1999, Elkin filed a complaint for support against the mother. On May 19, 1999, an order was entered directing the mother to pay support for Emmanuel in the amount of $180 per month. On an appeal to the Superior Court of Pennsylvania, the order was reversed. The Court stated: Because Emmanuel turned eighteen on December 28, 1998, and Elkin did not file her petition until May 4, 1999, Elkin could not have acquired standing to bring an action for child support against Mother on the basis of either Rule 1910.3, as interpreted by Larson, [v. Larson, 549 Pa. 118 (1997)], or 23 Pa.C.S.A. section 4341. The only possible provision of Rule 1910.3 applicable to this action is subsection (2) which states that an action shall be brought "on behalf of a minor child by a person having custody of the minor, without appointment as guardian ad litem..." (emphasis added). Pa.R.C.P. 76 defines minor as "an individual under the age of eighteen years." Similarly, 23 Pa.C.S.A. section 4341 grants standing to "[a]ny person caring for a child.., to commence or continue an action for support of that child regardless of whether a court order has been issued granting that person custody of the child." (emphasis added). "A 'child' is defined in the Commonwealth for domestic relations purposes,.., as '[a]ny unemancipated person under 18 years of age.'" Walkerv. Walker, 362 Pa. Super. 75, 80, 523 A.2d 782, 784 (1987) (citing 23 Pa.C.S.A. § 5304). Because Emmanuel is not by definition a "child" or "minor", but rather is an unemancipated adult, Elkin does not fall within the parameters of either Pa.R.C.P. 1910.3 or 23 Pa.C.S.A. section 4341 as a person permitted to file a support action on behalf of Emmanuel. Thus, since Elkin lacked standing to file a complaint for support, this action must be dismissed. Accordingly, we remand this action to the trial court directing that the order of support be vacated and the complaint for support be dismissed on the basis of lack of standing. We further direct that -4- 161 SUPPORT 2001 Mother be reimbursed any monies paid as a result of the existing support order. We further note that even though Mother has the parental duty of supporting her child "until [her] child reaches 18 or graduates from high school, whichever event occurs later," Blue v. Blue, 532 Pa. 521,529, 616 A.2d 628, 633 (1992), she does not have to be subjected to her child dictating how or to whom the support should be allocated. See Oeler by Gross v. Oeler, 527 Pa. 532, 534-36, 594 A.2d 649, 650 (1991) (holding that trial court properly terminated father's obligation to support his seventeen-year-old daughter, who refused to live with father, but instead chose to reside in her own apartment after her mother moved out of state, where daughter offered no justifiable reason for not living with her father; daughter only contended that her step-mother was "too neat" for her, and that she wanted to live closer to her friends). In the present case, it is clear from reviewing the record that Mother is not refusing to support her son. She attempted to appease his desires to remain in the school of his choice and in doing so permitted him to live in her home in Marion Center. Mother's uncontradicted testimony revealed that she regularly provided money to him and traveled from Lancaster to Marion Center to ensure that he had food and necessaries. When the electricity was turned off due to unpaid bills, she not only rectified the condition but also requested that he come and live with her in Lancaster. She has provided evidence of enrollment at the local high school in Lancaster and is willing to provide housing, food and clothing for her son in Lancaster. Accordingly, based on the facts presented, we find that the son, either through Elkin or on his own accord, may not prevail in departing from Mother's home claiming attainment of majority and a desire to attend a certain high school, and then charge her with his support. Oeler, supra. (Footnotes omitted.) (Emphasis added.) In the case sub judice, plaintiff argues that the facts are different then those in Elkin because Brian was "constructively evicted" from the home of defendant. At the hearing, defendant testified that both he and his wife told Brian that he was welcome to return to their home, and that "[t]he door is always open to him." He testified that "1 would have never throwed him out of my house, any of my kids." Brian testified that he left his father's home because his stepmother destroyed his mother's picture, but he was aware that he could return at any time he wanted. Notwithstanding that the conduct of the stepmother was despicable, -5- 161 SUPPORT 2001 and acquiesced to by defendant, Brian, who was 18, voluntarily left his father's home. There was no constructive eviction. Plaintiff argues in her brief: [t]hat standing in this instance, was meant by the legislature, to include for purposes of support, of any child who is not emancipated and in school and/or is less than 18. Our support law considers a child over eighteen, but still in high school, unemancipated, and it is clear that the legislature intended to confer the same standing to any adult that is providing care and is equally situated to the parent. We have great sympathy for plaintiff's position. When Brian left his father's home his father did nothing constructive to get him back and keep him in school. When the father's parents and Brian's mother asked plaintiff to take care of Brian, who plaintiff had met only once, plaintiff brought Brian into her home and provide for all of his needs while he continued to attend high school. We are not free, however, to interpret the law differently than did the Superior Court in Elkin. In Elkin, the child, age 18, who was in the 11th grade, chose not to move into his mother's new home which was in a different school district. He moved in with a friend, despite his mother's willingness to care for him. The friend then filed a complaint for child support against the mother. In the present case, Brian, who was 18, and in the 11th grade, voluntarily left his father's home after a tiff with his stepmother. His father was willing for him to return. Brian, however, chose to accept an offer by plaintiff to move into her home. Plaintiff later filed a complaint for child support against the father. The facts of the two cases are not distinguishable. As in Elkin, plaintiff here could not acquire standing to bring an action for child support against the father. Therefore, the order of October 9, 2001, directing -6- 161 SUPPORT 2001 plaintiff to pay defendant the $810 that defendant paid to her on the support order of March 30, 2001, was properly entered. (Date) Karl Rominger, Esquire For Plaintiff Robert O'Brien, Esquire For Defendant :saa Edgar B. Bayley, J. -7-