MAZUREK v. RUSSELL   2014 Pa Super. 130 (2014)

College provisions in property settlement issues have always been a source of controversy.  The typical provision calls for mutual consent “which consent shall not be unreasonably withheld”.  The language seems clear enough when pen is set to paper but when enrollment time comes the games begin as mother has one set of ideas and father another.  The other wrinkle is that by the time college rolls around a child may be estranged from one parent.  So what is “consent” and can it ever be reasonably withheld?

A case decided on June 24 affords us some insight into these questions.  In Mazurek v. Russell, the parties agreed in 2010 to the typical language recited above.  When Mother filed an emergency petition to compel payment for one of the children to attend Marymount Manhattan college in NY, Father blasted back with several defenses including:

1.            Son had lackluster academic performance in high school;

2.            Son had been estranged from Father for five years despite Father’s best efforts. 

Father then said, he would pay if Luke reconciled with Father, maintained a 3.0 GPA and did not take a car.  His terms were not agreed to.  He then noted that there had been no consultation about the school selection.  

A hearing was held in late July, 2013.  The trial court heard evidence and ruled that Father was on the hook for the college and Mother’s counsel fees. 

On appeal a panel of the Superior Court found the “not unreasonably withheld” consent language to be ambiguous as a matter of law and subject to parole evidence to help interpret the intent of the parties.  The Court then looked at two conflicting cases where consent has been an issue.  The first, Fina v. Fina, 737 A,2d 760 (Pa. Super, 1999) held that mutual consent language required meaningful interaction.  A second case, Wineburgh v. Wineburgh, required payment on the basis that the agreement’s use of language that Father would “have a say” did not require consultation. 

The Mazurek Court sided with the ruling in Fina, noting that “we cannot ignore the significant of {mutual consent} language to which the parties contracted.  The Court found that Father evinced a reasonable basis for withholding his consent.  It also appears from the opinion that Father’s prior history of paying large sums for private secondary school for all children and private college tuitions for two other children were factors that weighed in his favor.  

There is an interesting twist to this reported opinion.  Judge Allen devotes a fair amount of time to discussing the estrangement issue and the opinion has a strong flavor of Judge Cirillo’s famous opinion in Milne v. Milne, 556 A.2d 854 (1989) where nine judges of the Superior Court decided that a child’s conduct toward a parent could be grounds to forfeit what was then a judicially imposed, non-contractual duty to contribute to college.  The question the bar will grapple with in the wake of this opinion is whether “reconciliation” with a parent is a necessary component to consultation and consent.  What makes the question even more complicated is that if Father’s testimony is to be credited, he was estranged from his child two years before he contracted to pay 100% of his reasonable expenses for college.  Did Father not have the last clear chance to demand “reconciliation” as a condition to assuming this pricey obligation?