# Commonwealth Ex Rel. Smith v. Smith

> Superior Court of Pennsylvania · June 11, 1970 · 217 Pa. Super. 1

URL: https://www.frixlaw.com/law-library/cases/9698232

## Case

- **Full name:** Commonwealth Ex Rel. Smith v. Smith, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** June 11, 1970
- **Citations:** 217 Pa. Super. 1; 268 A.2d 161; 1970 Pa. Super. LEXIS 1223
- **Precedential status:** Published
- **Opinion:** Concurring in part by Montgomery
- **Judges:** Wright, Watkins, Montgomery, Jacobs, Hoffman, Spaulding, Cercone
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9698232

## Opinion text

Concurring and Dissenting Opinion by
Montgomery, J.:
I concur with the action of the majority in affirming the award to the mother in this case. However, I dissent from the affirmance of the award to the daughter for her college education.
It is my opinion that the testimony of the father on the subject of his promises to send his daughter to college can be interpreted only as a general desire or his personal resolution to do so. It is apparent from the record that the father does not have sufficient estate, earning capacity or income to enable him to send this child to college without undue hardship. Therefore, in absence of an agreement, we should not require him to do so. Commonwealth ex rel. Yannacone v. Yanna cone, 214 Pa. Superior Ct. 244 , 251 A. 2d 694 (1969). I believe that the term agreement, which was used by tln> Court in the latter and other like cases, means a binding contract, oral or written, which must be sup *7 ported by consideration like other contracts to be legally enforceable. See Commonwealth v. Martin, 196 Pa. Superior Ct. 355 , 175 A. 2d 138 (1961). Haying found no suck agreement in this record, I respectfully dissent from expansion of the law of support to include the enforcement of orders of support against parents who express their strong desires or promises to send their children to college.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698232. Public record. Not legal advice.