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In the recent Pennsylvania Superior Court case of Kotzbauer v. Kotzbauer, the Superior Court affirmed the trial court’s granting of child support to a mother of a 19-year-old college student with a physical disability. The factual background in this case is as follows: Robert Kotzbauer and Linda Kotzbauer are the parents of Kaitlin Kotzbauer. Kaitlin was diagnosed with epilepsy while she was in high school. In 2004, she underwent brain surgery for the seizures from which she was suffering. According to the opinion: “Prior to her surgery, she was a normal, active teenager with no learning disabilities or memory problems. Following this surgery, she began to have problems with her memory and ability to focus. She needed learning support for all, but one, of her classes. Her grades dropped. Additionally, she needed more sleep, and was tired all of the time. She continued to have seizures, though they were currently under control. She now suffers from severe headaches, including migraine headaches, she remains at risk for seizures.” Kaitlin also suffers from cavernous malformations on her brain. “At least one of those malformations has been leaking blood.” The malformations do not require surgery at this time, though Kaitlin undergoes at least an annual MRI to check the malformations. Kaitlin is treated by a number of doctors for the brain malformations, headaches and seizures. Mother pays approximately $200 to $250 per month for co-pays for doctor visits and medications for Kaitlin. “Mother watches Kaitlin closely on a daily basis, to supervise her medication regime and her behavior. Kaitlin is subject to moods swings, rapid heartbeat, and possibly becoming suicidal or extremely depressed,” according to the opinion. One of the more significant and recurring problems affecting Kaitlin is her migraine headaches. Testimony was taken at the trial court level from Kaitlin, Mother and the manager from where she works. All three testified about the debilitating effects that the migraine headaches have on Kaitlin. Kaitlin testified as follows: “[W]hen I do get a headache, I get what’s called tunnel vision where I can’t – I don’t have any peripheral vision whatsoever. I get very nauseous. I get numbness in my hands and my feet and in my mouth. I can’t talk. I can’t really understand a lot of things that are going on around me. I can’t write. I have a very hard time creating any sentence to be able to communicate with people. I stagger when I walk, and I become very scared. I get very, very emotional. I sometimes cry, and I can’t stop.” According to the opinion, “Kaitlin is currently attending Butler County Community College in Cranbury Township as a full-time student, in part, so that she may remain on Father’s health insurance.” However, Kaitlin is taking a minimum number of credits (12), because of the difficulty that school poses to her. At the time of the support hearing, “she had a D in two of her four classes.” Mother and Kaitlin both believe that Kaitlin is incapable of living on her own. Kaitlin’s college tuition is paid by a UGMA account and she works part-time (approximately 16 hours per week) earning $7.38 per hour. The manager at her place of employment testified that Kaitlin is not offered more hours to work and has also been encouraged to take time off as a result of her migraine headaches that render her unable to work when they occur during business hours. Pursuant to the testimony, Kaitlin suffers from headaches three to four times per week and suffers from a migraine headache at least one time a week. Testimony further indicated that Kaitlin is able to pay for her car insurance, cell phone bills, gas and some lunches at the college from her earnings, though she relies on Mother for food, clothing, shelter and her medication. Mother is employed as a pilot crew scheduler for U.S. Airways earning $3,014 per month net, and Father is employed as a teacher for the Moon Area School District earning a monthly net income of $4,428. Father also provides medical insurance for Kaitlin through his employer at no cost. “Following a December 5, 2006 evidentiary hearing, the trial court entered a support Order directing Father to pay $398 per month for his daughter’s care,” the opinion stated. After Father’s motion for reconsideration was denied, he filed a timely appeal. Father raised four issues on appeal. The first three issues are interrelated. “The crux of Father’s position [regarding the first three issues on appeal] is that there was insufficient evidence to sustain a finding that Kaitlin has a medical condition that prevents her from obtaining profitable employment at a supporting wage.” Father’s fourth issue on appeal is that the trial court erred in applying the Pennsylvania Child Support Guidelines in a case where the subject of the support order is over 18 years old, has graduated from high school and has a part-time job. An appellant must demonstrate by clear and convincing evidence that an abuse of discretion has occurred when challenging the validity of a support order. “An abuse of discretion is not merely an error of judgment; rather, it occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, bias, or ill will,” the opinion stated. Though the general rule is that the duty to support a child ends when the child turns 18 or graduates from high school, whichever occurs later, “pursuant to 23 Pa.C.S. 4321(3), a parent may be required to support a child who upon reaching the age of majority, has a mental or physical condition that prevents the child from being self-supporting.” The test to determine if a support order for a child of the age of majority is appropriate is whether the subject child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage. Under Father’s first three arguments (that the Superior Court grouped together), he argued that Mother did not present expert testimony indicating that Kaitlin cannot live independently of Mother and that one of the doctors who submitted letters – un-objected to at the trial – regarding Kaitlin’s inability to work full-time were unqualified opinions as that doctor had little contact with Kaitlin prior to the hearing. Father further argued that the trial court “ignored testimony that Kaitlin has an active lifestyle and good health.” The Superior Court disagreed with Father’s position and argument and reiterated that Mother, Kaitlin and the manager from Kaitlin’s employment testified regarding Kaitlin’s medical problems and that it was evident that Kaitlin’s migraines and headaches negatively impacted her ability to maintain full-time employment and care for herself independently of Mother. The manager from Kaitlin’s employment indicated that Kaitlin would at times curl up “into a ball” when the headaches were very severe. The Superior Court acknowledged that testimony was taken that reflected that Kaitlin did occasionally engage in activities that require physical exertion, like dancing in local theater productions, going hunting and driving a car. However, the Superior Court stated that “the trial court heard unrebutted testimony that Kaitlin’s migraines have a profound impact on her daily activities, as she must take prescription medicines that drain her energy.” “Emancipation” is a question of fact to be determined by the circumstances presented in each case. The Superior Court stated that the fact that Kaitlin occasionally engages in activities requiring physical exertion does not prove that she is “emancipated.” The Superior Court found that the trial court did not abuse its discretion in holding that Father was responsible for child support in the amount of $398 per month as “there was ample evidence to sustain the trial court’s ruling.” Further, the fact that Mother did not provide an expert witness regarding Kaitlin’s medical condition was not fatal to Mother’s claim, since “it was undisputed that the parties’ child underwent brain surgery after developing seizures, and three lay witnesses . . . testified that Kaitlin cannot maintain full-time employment because she suffers from acute migraine headaches that frequently interfere with her existing work schedule.” Father’s last issue on appeal pertained to the trial court applying the Pennsylvania Child Support Guidelines to the present case. Father argued that this was incorrect because Kaitlin is in college, has her tuition paid from an UGMA account and has a part-time job. Therefore, Father argued that the court should have applied a “needs-based” analysis to determine the support obligation. The Superior Court held that when a party requests support for an adult child who has a mental or physical condition that prevents the child from earning a supporting wage, the guidelines should be applied. Therefore, the Superior Court affirmed the trial court’s order obligating Father to pay child support for his 19-year-old daughter pursuant to the guidelines. This case is helpful to the family law practitioner who finds himself or herself in a position of representing an obligee-parent of a disabled child who is both 18 years of age and a graduate of high school. This case is a reminder that, in certain circumstances, child support may continue after the traditional time of emancipation. Further, this case reiterates the importance of a trial court’s decision in a fact-based case such as emancipation. MICHAEL E. BERTIN is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee, a member of the executive committee of the family law section of the Philadelphia Bar Association and a former member of Council of the Family Law Section of the Pennsylvania Bar Association.

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