HomeMy WebLinkAbout1049 S 2009
LYNNE LEIGHTON HARE, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
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v. :
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BRIAN R. LEIGHTON HARE, : PACSES NO. 978111262
DEFENDANT : 1049 SUPPORT 2009
IN RE: DEFENDANT’S EXCEPTIONS TO
SUPPORT MASTER’S REPORT AND RECOMMENDATION
OPINION AND ORDER OF THE COURT
Masland, J., December 31, 2012:--
BACKGROUND
On May 25, 2010, the court ordered Brian R. Leighton Hare (Father) to
pay child support in the amount of $566.00 per month to Lynne Leighton Hare
(Mother) for the benefit of the parties’ daughter, Gabrielle. On March 2, 2012,
Father filed a petition to modify/terminate the order. The court entered an interim
order on April 4, 2012, which was appealed by Father. Following a hearing on
May 29, 2012, the Support Master recommended reinstating the May 25, 2010
order in full. On June 20, 2012, Father filed timely exceptions, which read as
follows:
1. The Master erred in reinstating the prior support order of May 25, 2010.
2. The Master erred in reinstating Defendant’s additional support
obligation per the May 25, 2010 order.
3. The Master erred in finding that Defendant is liable for continuing child
support despite the child having reached the age of 18 and having
completed all compulsory education requirements. Such child support
should have been terminated in accordance with 23 Pa. C. S. Section
4321 et seq. and 1910.19 et seq.
1049 SUPPORT 2009
4. The Master erred in finding the Defendant liable for any costs
associated with postsecondary educational costs.
5. The Master erred by holding Defendant to a different standard of
support than other similarly situated parents in Pennsylvania in violation of
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Defendant’s right to equal protection of the laws.
The pivotal issue among these exceptions is whether Gabrielle’s
education in the United Kingdom (UK) constitutes post-secondary education that
would render her emancipated and terminate the order. That issue is somewhat
muddled by the name of her school - Richmond Upon Thames College
(Richmond), which would appear to answer the question in short order. But, alas,
the term “college” is just one of many examples that prove George Bernard
Shaw’s point - “England and America are two countries separated by a common
language.” As such, our focus is not on British educational nomenclature, but
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rather, on the substance and nature of the education itself.
For the reasons that follow, with the exclusion of Father’s second
exception regarding the “additional support,” the court dismisses Father’s
exceptions, including the central question regarding the nature of Gabrielle’s
education.
FINDINGS OF FACT
We have reviewed the Master’s Report and Recommendations, the
hearing transcript and briefs of the parties. Although Father challenges the
Master’s analysis, the basic facts are not in dispute. Therefore, we are
1
Father’s Exceptions to Master’s Report and Recommendations, filed June 21, 2012.
2
This is not merely a conflict between British and American English. In France, middle-school children
attend collège. Therefore, we will not examine the etymology of “college,” nor will we decide this case
based on labels, linguistics or lexicons. To quote another famous Englishman, “that is something up with
which we will not put.”
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comfortable adopting the Master’s Findings of Fact, as augmented slightly by
our review of the record. We will summarize the most salient facts.
In the UK educational system, upon completion of compulsory education,
which runs through age 16, students take tests called the General Certificate of
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Secondary EducationGCSE) if they wish to pursue further education. Students
(
th
who do well on those tests pursue an academic path called the “6 Form” and
are required to take “A levels” courses for two years before attending a
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university. If a student performs poorly on the GCSE tests, further education is
still an option but is limited to vocational programs, including the Business &
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Technology Education Council (BTEC) course of study. Of course, students
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may choose to opt out of continuing their education and enter the work force.
With respect to Gabrielle’s education, the Master found that she did poorly
on the GCSE tests (passing only one of several tests) and entered the vocational
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track in October 2010 at Richmond. Mother did not deny the poor showing, but
explained that through her forbearance with the college Gabrielle is taking three
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A-levels courses at Richmond. Mother went on to explain that because of
Gabrielle’s poor performance on the GCSE she needed a remedial year at
Richmond and will require a total of three years instead of two to complete her
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education. Although Father disputed that Gabrielle was taking anything other
3
Support Master’s Report and Recommendations, Findings of Fact 1-20, filed May 29, 2012 [hereafter
Master’s Finding __]
4
Master’s Findings 7 and 12.
5
Master’s Findings 10 and 13.
6
Master’s Findings 11 and 14.
7
Master’s Finding 8.
8
Master’s Findings 15 and 16.
9
Notes of Testimony, May 29, 2012, p. 54 (hereafter N.T.__).
10
N.T. 55-57
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than vocational courses, his understanding was that she was in a two year
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course of study. Having been absent from the UK for many years, and less than
engaged with Gabrielle’s educational experience, his understanding strikes as
less persuasive than Mother’s.
Ultimately, it may be is somewhat unclear precisely what degree Gabrielle
will receive, but for our purposes it is sufficient to note that she will complete her
three-year program at Richmond in June of 2013, at which time she will be 19
years old.
STANDARD OF REVIEW
The Support Master’s Report is to be given the fullest consideration and
should not be disturbed unless the record indicates a clear abuse of discretion
based on a showing of clear and convincing evidence. Moran v. Moran, 839
A.2d 1091 (Pa. Super. Ct. 2003). Abuse of discretion is found where the
evidence on record is insufficient to sustain the award, where the law is
overridden or misapplied, or where the exercise of judgment is unreasonable.
Lampa v. Lampa, 537 A.2d 350, 351 (Pa. Super. Ct. 1988). However, since it is
our “sole province and responsibility … to set an award of support” it is
incumbent upon us to conduct a thorough review of the evidence “to determine if
the recommendations are appropriate,” Goodman v. Goodman, 544 A.2d 1033,
1035 (Pa. Super. Ct. 1988).
DISCUSSION
We begin with the oft-debated but uncontestable holding of the Supreme
Court of Pennsylvania that child support shall continue until a child reaches
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N.T.64
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eighteen year of age or graduates from high school, whichever occurs later. Blue
v. Blue, 616 A.2d 628 (Pa. 1992). There is no question that Gabrielle turned 18
on December 7, 2011. The dispute is whether, at age 16, she embarked upon
additional secondary education or post-secondary education.
Father’s difficulty with the Master’s recommended order boils down to two
essential arguments. First, he argues the order should be terminated because
Gabrielle completed compulsory education in the UK, and the school she is
currently attending is equivalent to a college or post-secondary education under
Pennsylvania law. Alternatively, he argues that the May 25, 2010 support order
should not have been reinstated because of changed circumstances in general,
or, at the very least, it should be modified because Gabrielle no longer attends
the private school whose tuition resulted in increased support of $62.00.
In addressing Father’s first argument, we begin with Pennsylvania
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requirement that a student attend school until the age of seventeen. After the
age of seventeen the student may choose to drop out of school. If the student
chooses to continue until graduation, support for that student is required until
graduation from high school, even after the age of eighteen. Although it is not
preferred, it is not uncommon for students to repeat a grade during their 13 years
of elementary and secondary education and consequently graduate at age 19.
In the UK, compulsory education ends at 16, at which time students are
presented with a fork in the road. Students who are qualified (i.e. those who test
well on the GCSEs) continue on the academic route for two years to prepare to
enter a university. Those less qualified follow a vocational route. In either case,
12
24 Pa. C.S. § 13-1326.
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students attend “college.” Although this is post-compulsory education in the UK
system, these colleges are dissimilar to those which are clearly post-secondary
in the United States.
Father claims that post-compulsory is ipso facto post-secondary and
notes, correctly, that child support does not extend to post-secondary education.
Curtis v. Kline, 666 A.2d 265, 269 (Pa. 1995). None the less, we are obligated to
engage in a more substantive examination to determine if the Master has made a
reasonable judgment in determining that Gabrielle is not emancipated based on
the nature of her education. And, for that we begin with the record before the
Master.
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Father’s expert witness, Bradley L. Spencer, considered completion of
compulsory school in the UK to be the equivalent of completing grade eleven in
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the United States, which is obviously short of graduating from high school. In
fact, Mr. Spencer agreed that a student coming to the US after completing her
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compulsory education in the UK could be a year short. Therefore, the mere
completion of compulsory education in the UK is not the equivalent of completing
one’s secondary education (i.e. graduating from high school) in the United
States. Therefore, it would have been necessary for Gabrielle to continue her
studies in one shape or form on either side of the pond..
13
Mother challenged the Master’s decision to permit expert testimony, which we do not question.
However, we do note that expert opinions are only of value when they have a sound foundation and they
are never binding on the fact finder.
14
N.T. 13
15
N.T. 15
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Mr. Spencer described the two years of the Sixth Form (the academic
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route) as “a bridge program.” In other words, this is additional secondary
studies that prepare the student for post-secondary studies, which may be
analogous to a student in the United States continuing her secondary education
in a prep school to enable her to attend college. In this case, Gabrielle did not
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perform well enough to pursue that route directly. Mr. Spencer testified that
completion of the BTEC studies would be equivalent to obtaining an associates
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degree in the United States.
Ultimately, Mr. Spencer conceded he had no documentation regarding
Gabrielle’s studies and could not definitively assess her specific academic
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credentials or standing. Further, he agreed that the mere fact that a student
was in an associate degree program such as a BTEC did not determine whether
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she had completed her compulsory education. In sum, although Mr. Spencer
was deemed to be an expert, the foundation for his opinions regarding
Gabrielle’s studies was far from solid. Thus, the Master did not abuse his
discretion in according little weight to Mr. Spencer’s testimony.
Nevertheless, we find Mr. Spencer’s “bridge” analogy to be quite useful in
our analysis. Just as the UK accords its best and brightest 16 year olds a bridge
to the university, they accord a vocational bridge to those who are less
academically inclined. Father would suggest that his daughter is safely on the
16
N.T. 14
17
Again, based on Mother’s testimony Gabrielle had a remedial year at Richmond to prove that she was
capable of handling the A-levels.
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N.T. 11.
19
N.T. 16
20
N.T, 17-19
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bridge and, upon turning 18, should proceed on her own. Mother contends,
emphatically, that not only does Gabrielle require assistance in making the
crossing, but also that she is on a hybrid, academic/vocational bridge. The
following testimony was offered by Mother to explain her daughter’s standing in
Richmond:
I’m desperate to tell you that she’s taking A-level. She’s not taking a
BTEC. And this is a Sixth-Form college that she’s at. She got no
qualification – well she got one qualification in GCSEs. I went to Richmond
College and begged them to take her because with one GCSE she will
have no chance of working. And they said that she had to do a one-year
foundation course first to see how she went on …
She went straight from Royal Albert to the college, to the Sixth Form
college. She did one year of foundation. She was exceptional so they
decided to keep her. So this is her first year. She is an exceptional student
and doing very well. And because an A-level is a two year course, she’s
had to do the foundation course because she had to prove without
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previous qualifications that she was going to be a good student.
Thus, we not only concur with the Master’s determination that the “college”
in question is more like a high school or vocational school under Pennsylvania
law, but we also find that no matter what bridge Gabrielle is on, as long as she
remains on the bridge, she is not emancipated. Moreover, Gabrielle’s hybrid
circumstances fall within the educational structure in Pennsylvania, where
students may simultaneously attend schools that grant associate degrees and
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gain credit for both high school, graduating with both degrees at the same time.
But, perhaps the best analogy is that of a 16 year old who wakes up to the
cold reality that she will have to repeat a grade or undergo remedial courses in
order to get on the bridge of her choice. Perhaps, that student does poorly on
21
N.T. 54-55
22
24 Pa. C.S. § 16-1611-B.
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standardized entrance exams, be they GCSEs, SATs or LSATs, but when given
the chance to prove her mettle in the classroom, she performs well. The
consequence for that student, in the U.S. as well as the UK, is that she will not
finish her secondary education at age 18. Such is the case for Gabrielle. While
Father may find this unfortunate because his obligation remains in place, we find
this to be the only appropriate and fair result. Education is a lifelong experience.
Sadly, in its secondary years, it is too often viewed as a sprint to the end.
Gabrielle may have slipped upon the track, but she is still on the track. She has
been fitted with a new pair of shoes, and should be permitted to run her race to
the end in an unfettered albeit unemancipated fashion.
In sum, in making this decision, the Master did not override, misapply, or
exercise an unreasonable judgment nor did he abuse his discretion. Therefore,
Father shall be required to pay child support until Gabrielle completes her
schooling in June of 2013.
We turn now to Father’s alternative arguments regarding the
reinstatement and modification of the order of May 25, 2010. His claim that the
order should not have been reinstated is without merit. The Master’s
recommendation is fully supported by the record. No evidence was presented of
a material or substantial change in circumstance that would affect the 2010
finding that Father’s proportional share of support is $504.00.
However, we do find that the Master erred in not modifying the order with
respect to the additional education expenses incurred by Gabrielle when she
attended Royal Alexandra & Albert School. In the 2010 order, Father was
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ordered to pay the additional sum of $62.00 per month for this private school,
which Gabrielle is clearly no longer attending. Further, because there is nothing
in the record to establish any tuition cost for her current school, the Master
should have reduced the order by $62.00 to reflect this material change in
circumstances. Accordingly, the court will reduce the monthly amount of support
from $566.00 to $504.00.
Finally, Father claims that he has not been afforded equal protection of the
laws. To the contrary, granting Father’s request to terminate the order would
afford him greater protection than parents whose children attend schools in
Pennsylvania. He is obligated to pay support until his daughter completes her
education, which, no matter the label, will not occur until June of 2013.
For these reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this ____ day of December, 2012, upon consideration of
Defendant’ Exceptions to Support Master’s Report and Recommendations, and
for the reasons stated in the accompanying opinion, Defendant’s second
GRANTED
exception is and his support obligation shall be decreased by the
sum of $62.00, effective June 2010. In all other respects, the exceptions are
DISMISSED
and the interim order of court dated June 1, 2012, is entered as a
final order.
By the Court,
__________________________
Albert H. Masland, J.
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Derek Clepper, Esquire
Special Counsel for DRO
For Plaintiff
Michélle Pokrifka, Esquire
For Defendant
Michael Rundle, Esquire
Support Master
:sal
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