Commonwealth Ex Rel. Wasiolek v. Wasiolek

380 A.2d 400, 251 Pa. Super. 108, 1977 Pa. Super. LEXIS 2967
CourtSuperior Court of Pennsylvania
DecidedDecember 2, 1977
Docket222
StatusPublished
Cited by36 cases

This text of 380 A.2d 400 (Commonwealth Ex Rel. Wasiolek v. Wasiolek) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Ex Rel. Wasiolek v. Wasiolek, 380 A.2d 400, 251 Pa. Super. 108, 1977 Pa. Super. LEXIS 2967 (Pa. Ct. App. 1977).

Opinions

HOFFMAN, Judge:

The instant case involves a serious question concerning the effect of the Equal Rights Amendment1 (E.R.A.) on Pennsylvania law governing a parent’s obligation of support: appellant, mother of three small children, has resisted seeking employment because she believes that the continued presence in the home is in the best interest of her children. The lower court held that the E.R.A. and recent Pennsylvania case law requires that appellant, formerly a secretary with a proven earning capacity, contribute to the support of her children. We agree with appellant and, therefore, reverse and remand.

Appellant and appellee were married on May 29, 1966. During the marriage, the couple had three children, Matthew, born November, 1966; Bartholomew, born September, 1968; and Jessica, born October, 1970. On March 5, 1973, after the parties separated, the court entered an order directing appellee to pay $45 per week for support of the three children. Following a divorce from appellee, appellant filed a petition to increase the support order. Between the original order and the date of the petition, appellee, an employee of the Philadelphia Department of Public Property, increased his income from $14,000 to $19,255 per annum.

On September 16, 1976, the lower court conducted a hearing on appellant’s petition. Appellant presented estimated weekly expenses of $196.04. In addition, she expressed a desire to move from her parents’ home in Havertown, Montgomery County, to an apartment of her own. [111]*111She explained that her seventy-four-year-old father suffered from a coronary condition and that her seventy-year-old mother had hypertension. Finally, she testified on cross-examination that she had been employed by Westinghouse Corporation as a secretary and had earned approximately $500 per month. She terminated her employment around the time of her marriage. When questioned about her current unemployed status, she responded as follows:

“A. I can’t find any work with three children, because I have to be there when they go to school and be there when they come home.
“Q. Why do you have to be there when they go to school?
“A. Someone has to make their breakfast and get them ready for school, and get their books together, and see they are properly dressed and that they make the bus on time.
“Q. What time do they go to school?
“A. Between 8 and 8:30.
“Q. Do you go pick them up?
“A. They are within walking distance of the bus, but I have to be in the house when they come home.
“Q. Why?
“A. Because there wouldn’t be anyone to care for them.” At the conclusion of the hearing, the lower court ordered appellee to pay $75 per week for support of the three children. This appeal followed. At issue is the court’s view that “[petitioner in addition to supporting herself, also has a responsibility to contribute towards the support and the maintenance of her children. She has worked in the past as a secretary and a nurse, and although she is living with her parents, she presented no evidence of her inability to obtain or seek employment.”

Since the passage of the E.R.A., our courts have carefully scrutinized the law governing domestic relations. See, e. g., Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976); Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 [112]*112(1975); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa.Super. 26, 344 A.2d 578 (1975); Commonwealth ex rel. Buonocore v. Buonocore, 235 Pa.Super. 66, 340 A.2d 579 (1975); Kaper v. Kaper, 227 Pa.Super. 377, 323 A.2d 222 (1974); Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426 (1973) rev’d on other grounds, 461 Pa. 482, 337 A.2d 256 (1975). As noted by Justice NIX in Commonwealth ex rel. Spriggs v. Carson, supra, 470 Pa. at 299, 368 A.2d at 639,2 “[w]e question the legitimacy of a doctrine that is predicated upon traditional or stereotypic roles of men and women in a marital union. ...”

In Conway v. Dana, supra, our Supreme Court rejected the view that “. . . the primary duty of support for a minor child rests with the father . . ., and also that the income or financial resources of the mother are to be treated only as an attending circumstance.” 456 Pa. at 539, 318 A.2d at 326. Conway made clear that a mother has an obligation of support, measured not by her actual earnings, but rather by her earning capacity. See also, Commonwealth ex rel. Kaplan v. Kaplan, supra. Recognition that a wife has an obligation of support does not end our inquiry. The E.R.A. requires that we treat men and woman similarly situated in a like manner. Cf. Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975), (dealing with equal protection under the Fourteenth Amendment to the United States Constitution). The amendment does not provide a substantive answer in the instant case.

We must be mindful that the purpose of a support order is the furtherance of the welfare and best interests of the child for whom it is entered. Conway v. Dana, supra; Commonwealth ex rel. Kaplan v. Kaplan, supra. Obviously, a court cannot ignore the substantial nonmonetary contributions made by a nonworking spouse. See DiFlorido v. DiFlo[113]*113rido, supra. It would surely be ironic if by its support order a .court were to dictate that a parent desert a home where very young children were present3 when the very purpose of the order is to guarantee the welfare of those same children. Such an order would ignore the importance of the nurture and attention of the parent in whose custody the children have been entrusted and would elevate financial well-being over emotional well-being. Conway v. Dana does not require that a court be insensitive to the reality of a nonworking parent’s contribution to the welfare of a child. Our Supreme Court did not intend to create a per se rule that the custodian parent was obligated to work in all cases.

We believe that the lower court in the instant case abused its discretion when it held, in effect, that appellant had to secure employment.

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Bluebook (online)
380 A.2d 400, 251 Pa. Super. 108, 1977 Pa. Super. LEXIS 2967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-wasiolek-v-wasiolek-pasuperct-1977.