Murphy v. McDermott

CONCURRING AND DISSENTING OPINION BY

FITZGERALD, J.:

¶ 1 I join the majority’s decision in full, except for the issue of private school payment. I respectfully dissent from the majority’s ruling on that issue.

¶ 2 I believe that the record contained insufficient evidence to establish Child would benefit from private school. Specifically, I would conclude that when a child has not yet reached mandatory schooling age and a parent or guardian files a petition requesting contribution for private school tuition, the petitioner should establish that the public school at issue is manifestly deficient. The petitioner should therefore prove that the public school would not be in the child’s best interest or, conversely, private school is demonstrably more beneficial than public school.

¶ 3 A brief summary of the facts concerning the private school payment issue is appropriate. Child was born on July 30, 2002. In September, 2005, Mother enrolled Child in a private preschool program. N.T., 5/16/07, at 21. Though Father apparently “disagreed” with that decision, he nevertheless voluntarily paid Mother $1,400.00 of the $1,980.00 cost of tuition for the 2005-06 academic year. Id. at 20. Mother enrolled Child in the same school’s pre-kindergarten program for the 2006-07 academic year. However, Father did not voluntarily contribute to the private school tuition for the 2006-07 academic year. Id. at 27.

¶ 4 During the hearing, Mother enrolled Child in a private school kindergarten program, to begin in September 2007. However, while this program was related to Child’s preschool program, it was not the same program. Five Catholic schools in Wyoming Valley, one of which was Regis Academy, where Child attended preschool, united to become one large pre-kindergar-ten to eighth-grade school called Good Shepherd Academy. Id. at 32-33. Father, once again, disagreed with the decision to enroll Child in this private school program. Id. at 69.

¶ 5 At the hearing, Mother testified that this particular private school would be in Child’s best interest because he had been attending that school with the same children for two years and it has a great academic program. Id. at 32. Conversely, having begun his schooling in Catholic school, but graduating from public school, Father believed that public schools offered more programs to meet the needs of Child, whether Child would require advanced courses or special needs courses. Id. at 70-71. Furthermore, he explained that he had spoken with some of his friends who teach at the local public school, and concluded that the public school would be suitable for his son. Id. at 73. In addition, Father testified that his objection to his son attending private school was “philosophical” rather than financial. Id. at 77.

¶ 6 Although the trial court focused heavily on Father’s finances and his objection to private school, the record contains scant evidence as to whether Child would benefit from private school:

Q. Why do you believe it’s in [Child’s] best interest to attend that [school]?

[Mother]. Because he has been with these children for two years now, and I think academically they have a great program.

N.T., 5/16/07, at 32. These two lines constitute the only testimony of record as to *382 whether private school would be in Child’s best interest.

¶ 7 After due consideration of this limited record, I cannot agree that this meets the mandated burden of “sufficient evidence.” Cf . Gibbons, 908 A.2d at 920-21(evaluating impact of school on child, including testimony from the child, child’s teacher, and child’s principal, and testimony by the child’s mother on how she works with the school to address the child’s study habits); Francis, 517 A.2d at 1000. Moreover, I do not consider Father’s objection to private schooling to be merely “philosophical.” Rather, he raises the legitimate point that public schooling could be in Child’s best interest and cannot be considered presumptively deficient. I further observe that I would have afforded less weight to Mother’s testimony that Child has established a bond with the other children at the school considering that Child had not yet begun kindergarten and no details were provided as to Child’s relationship with his schoolmates.

¶ 8 The majority claims that “it is impossible to say that the court acted unreasonably in determining that the child will ‘benefit.’ ” Majority Op. at 378. Given the scant record, I must disagree. The majority relies upon the fact that Mother enrolled Child in kindergarten at a newly-consolidated school. I submit this fact counters the notion that this newly-consolidated school will “benefit” Child. Rather than remaining in the same or similar school with the same children, as the majority seems to allude to, Child would attend school in a completely new building, with a class size greatly increased by the consolidation of the five schools, if Child remained in private school. See Majority Op. at 375 n. 1. With such a scant record, I am uncomfortable with the majority’s conclusion.

¶ 9 In addition, the majority states “the record ... reflects that this contribution [by Father] poses little, if any, financial burden on Father.” However, I suggest this factor should not even be considered. The question that should be addressed is whether Father should pay for the reasonable private schooling, not whether Father is financially able to pay for the private schooling. While Father’s financial situation comes into play when determining how much of the private school tuition he should pay, his financial situation should not be dispositive of whether he should pay at all.

¶ 10 I believe Mother should be required to establish via a preponderance of the evidence that, given Child’s young age, public school is manifestly deficient as compared to private school, and thus would not be in his best interests, particularly when Child has not yet begun the education mandated by law. See 24 P.S. § 13-1304. Conversely, I believe that Mother should have the burden of establishing that pre-kindergarten or kindergarten at a public school would not benefit Child’s “physical, intellectual, moral and spiritual well-being” in any way. Staub v. Staub, 960 A.2d 848, 853 (Pa.Super.2008) (quoting A.J.B. v. M.P.B., 945 A.2d 744, 747 (Pa.Super.2008)).

¶ 11 I am greatly reluctant to affirm, on such scant evidence, the trial court’s summary conclusion that private school, and not public school, was in Child’s best interest given Child has not yet begun first grade. I cannot rubberstamp any analysis that presumptively concludes private school is superior to public school given all the attendant facts and circumstances, including, without limitation, Child’s age and the start of his legally mandated education. In particular, I am unaware of any legal basis upon which one married parent could legally challenge the decision of the other *383 parent to have their child begin legally mandated education at a public school. I observe that our Courts have previously noted their concerns about treating the children of married and divorced/unmarried families differently. See Curtis v. Kline, 542 Pa. 249 , 666 A.2d 265 (1995) (holding 23 Pa.C.S. § 4327 (1994) unconstitutional because it improperly treated “the children of married families and divorced/unmarried families differently” by compelling divorced/unmarried families to provide some financial assistance for post-secondary education). Accordingly, we should be particularly cautious about how our courts handle the beginning of a child’s mandatory education, which begins at the first-grade level.

¶ 12 I agree with the majority for most of the issues presented before this Court. However, for all these reasons, and given these unique facts and circumstances, I respectfully dissent from the majority on the issue of private school payment.