# Griffin v. Griffin

> Supreme Court of Pennsylvania · March 29, 1989 · 384 Pa. Super. 188

URL: https://www.frixlaw.com/law-library/cases/9748686

## Case

- **Full name:** Patricia J. GRIFFIN v. Vincent A. GRIFFIN, Sr., Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 29, 1989
- **Citations:** 384 Pa. Super. 188; 558 A.2d 75; 1989 Pa. Super. LEXIS 766
- **Precedential status:** Published
- **Opinion:** Concurring in part by Sole
- **Judges:** Cirillo, Brosky, Rowley, Wieand, McEwen, Sole, Montemuro, Beck, Tamilia
- **Cited by:** 38 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/9748686

## How later opinions describe it (automated extraction)

- explaining that when mother has no income available for support it is a foregone conclusion that her child support obligation will be zero, while father’s share will be one hundred percent

## Opinion text

DEL SOLE, Judge,
concurring and dissenting:
As does my colleague, Judge Wieand, I concur in the majority’s decision to affirm the support order entered on behalf of the parties’ three minor children. However, I must dissent from the majority’s rulings regarding the parties’ three children who were over the age of 18 when the support action was initiated by their mother. I believe that the petition for support as to these three women should be dismissed for failure to conform to Pa.R.C.P. 1910.3(4).
The Rules of Civil Procedure direct which parties may bring an action for support. The general rule requires an action to be brought by any person “to whom a duty of support is owing.” Pa.R.C.P. 1919.3(1). Generally, an adult person to whom support is owed will maintain their own action. And, the Rules of Civil Procedure define an adult as an individual eighteen years of age or over. Pa.R. C.P. 76. A minor is defined by the Rules as an individual under the age of eighteen, Pa.R.C.P. 76, and a person having custody of the minor may bring an action for support on the minor’s behalf. Pa.R.C.P. 1910.3(2). In actions seeking support for a an adult child, the Rule permits a parent to institute the proceedings if the written consent of the child is acquired. It states:
An action shall be brought
(4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.
*208 Pa.R.C.P. 1910.3(4). (emphasis added.)
The comment to this rule states that it is designed to “permit a parent to initiate an action on behalf of a child who is away at school or otherwise absent from the forum.” In this case, Appellee, mother, initiated an action against Appellant, father, seeking support for three children who had past their eighteenth birthday. The record does not include the written consent of these women to bring this support action against their father.
The application of this Rule has been considered by this court in a situation where a parent sought review of an order increasing his duty of support for an adult child who was not a party to the action. In Com. ex rel. Cochran v. Cochran, 339 Pa.Super. 602 , 489 A.2d 804 (1985) this court construed Rule 1910.3(4) to require “the written consent of a child over eighteen years of age when a parent seeks to impose an additional support obligation on the other parent”. Id., 339 Pa.Superior Ct. at 607, 489 A.2d 804 . Finding no such consent the court ruled that the petition for increased support should have been dismissed. In support of its decision the court commented: “If through the written consent requirement we have given children over eighteen a role in the decision whether to seek a support order in the courts, there is no reason why that role should exist only if the child was not previously covered by a support order during his or her minority.” Id.
In this case, Appellant’s three eldest daughters did not file an action for support against their father. The action was brought by their mother, however no written permission was obtained from these women. In accordance with Rule 1910.3(4) and this court’s decision in Cochran , I would dismiss the petition for support of Appellant children who were over the age of eighteen at the time the action was initiated.
The majority suggests that this result is unwarranted because no objection to the lack of consent was raised by the father. It is the majority’s position that the father’s inaction has waived the issue of non-compliance with Rule *209 1910.1 et seq. See Majority Opinion at 192, n. 2. I do not believe this issue can be waived. The failure to include the consent of the adult children to this action amounted to the absence of indispensable parties. An indispensable party is one whose rights are so connected with the claim litigated that no relief can be granted without infringing upon those rights. Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377 , 346 A.2d 788 (1975). Rule 1910.3(4) recognizes the necessity of requiring adult children to maintain their own support actions against one or both parents, and also makes a provision for assisting them in this endeavor when they may be absent from the forum; it permits a parent to initiate the action with the written consent of the child. The Rule, in effect, makes the adult child an indispensable party to the support action. “The absence of indispensable parties goes absolutely to the jurisdiction, and without their presence the court can grant no relief____ This objection to the court’s jurisdiction may be raised at any time in the proceedings and, if not raised by the parties, should be raised sua sponte.” Posel v. Redevelopment Authority of Philadelphia, 72 Pa. Commw.Ct. 115, 456 A.2d 243, 246 (1983). Thus, I believe the failure to include the adult children’s consent to this support action is not an issue subject to waiver, and the support petition should be dismissed.
It is my position that this decision would be in keeping with the spirit of the Rule. As recognized by the Cochran court an adult child should be the person to decide whether to pursue court ordered support from a parent. The necessity of making such a decision may prompt children to enter private discussions with their parents, individually or together, to resolve issues such as support for college education. This course of action, outside the court system, is undoubtedly better in promoting family harmony. Further, it is the course which these children would necessarily take if the circumstances were different and their parents had not divorced.
The majority refers to caselaw which maintains that children of divorced parents should not be “victimized” by *210 withholding payment of a college education if their parents would have supported their education had they remained married. Majority Opinion at 193-195. In an effort to prevent this perceived “victimization” these children have been permitted to seek support through the court system. However, it is important to realize that children of parents who remain together do not look to the courts to resolve their college financial problems. The children of a two-parent household must work out their college finances with their parents without the power of the judiciary behind them, and failing that they must somehow earn or borrow the money needed. This, in my view, is the far better practice. Pa.R. C.P. 1910.3(4) promotes this procedure. It necessarily involves adult children in the financial decisions which must be made concerning their further education.
Since Appellant’s adult daughters did not file an action for their own support and since they did not give their mother written consent to pursue an action in their behalf, I would dismiss their Complaint for support in accordance with Rule 1910.3(4).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748686. Public record. Not legal advice.