Pawol v. Pawol

437 A.2d 974, 293 Pa. Super. 29, 1981 Pa. Super. LEXIS 3802
CourtSuperior Court of Pennsylvania
DecidedNovember 30, 1981
Docket444
StatusPublished
Cited by13 cases

This text of 437 A.2d 974 (Pawol v. Pawol) 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
Pawol v. Pawol, 437 A.2d 974, 293 Pa. Super. 29, 1981 Pa. Super. LEXIS 3802 (Pa. Ct. App. 1981).

Opinion

SPAETH, Judge:

This is an appeal from an order increasing the amount that appellant must pay in support of his minor child. Appellant argues that there should be a new hearing be *31 cause no stenographic notes of testimony were taken. 1 We agree and therefore reverse and remand for further proceedings.

On February 11, 1967, an order was issued directing appellant to pay $85 per month for support of his child. On January 1, 1980, appellee filed a petition for an increase in the order because of the cost of living. Pursuant to Beaver County Local Rule No. 1006, a conference was held before a hearing officer. 2 When no agreement was reached, the hearing officer recommended that appellant pay $185 per month for support of his child, and also, all medical, dental, and hospital expenses incurred on behalf of the child. Appellant filed exceptions, and after a proceeding that we shall *32 discuss in a moment, the lower court ordered appellant to pay $175 per month for support of his child and one half of the medical, dental, and hospital expenses incurred on behalf of the child. This appeal is from that order.

The record does not disclose just what occurred before the lower court on appellant’s exceptions. In its opinion the lower court does not say what occurred but describes its general practice as follows:

Whenever the parties are dissatisfied with the [hearing] officer’s recommendation, . . . they can take exceptions, pursuant to Local Rule 1006(5) and the matter will be heard before the Court. These open court hearings are attended by the parties, their legal counsel and usually by the hearing officer who heard the matter originally. Taken into consideration in arriving at a final order are the facts as developed by counsel at the hearing, the arguments of both sides and the recommendation of the hearing officer. Although weight is given to it, we do not consider ourselves bound by the recommendation.
Again [i.e., as is also true of the conference before the hearing officer] there is no requirement that stenographic notes be taken at the hearing before the Court for many of the same reasons that they are not taken at the conference level.
Slip op. at 3-4.

In discussing why stenographic notes are not taken at the conference level, the lower court says:

There is no requirement that the hearing officer have a stenographer present at these conference proceedings namely because it would work as a disservice to the efficient administration of support matters. Such a requirement would also be too costly and burdensome for all those involved. Moreover, a great majority of the support conferences end up with some sort of agreement which is satisfactory to the parties, thus obviating the need to take testimony.
*33 Id. at 3.

We have recently had occasion to consider the practice of not stenographically recording support hearings. In Mansfield v. Lopez, 288 Pa.Superior Ct. 567, 432 A.2d 1016 (1981), the appeal was from an order based upon a finding that the appellant was the father of the appellee’s child, and directing the appellant to pay $10 per week in support of the child. As here, no stenographic notes had been taken, the lower court explaining that

[t]he practice of this County regarding non-support hearings is that they are not stenographically recorded unless either party requests that they be.
Id., 288 Pa.Superior Ct. at 569, 432 A.2d at 1017.

We held this practice a violation of the Act of May 1, 1907, P.L. 135, § 3, 17 P.S. § 1804, which provides that

[t]he official stenographers of the several courts of common pleas . . . shall take full stenographic notes of testimony in all judicial proceedings in any trial of fact, at law or in equity ....

We therefore remanded for a new trial, at which full stenographic notes were to be taken. We shall do the same here. It may well be that considerations of efficiency and economy justify the absence of a stenographer at the conference level. Such considerations cannot, however, justify a failure to comply with the Act of May 1, 1907, supra, 17 P.S. § 1804, when an action not resolved at the conference level becomes a judicial proceeding.

Apparently anticipating this conclusion, the lower court says:

It is conceivable that the Appellate Court would remand this case to us so that a record could be taken thereby providing a basis upon which it could determine whether the increase in support was excessive. Our position that the increase in support was justified, however, remains steadfast.
*34 Slip op. at 4-5.

We do not question the lower court’s steadfastness. Our responsibility, however, is to determine whether the court’s decision is supported by law. It is settled that in evaluating a parent’s obligation of support, a lower court should consider the parent’s income and the “full nature and extent of the parent’s property interests and financial resources.” Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Superior Ct. 562, 429 A.2d 665 (1981). While our scope of review is narrow, being limited to determining whether the evidence supports the order and whether there has been an abuse of discretion, Berry v. Berry, 278 Pa.Superior Ct. 30, 419 A.2d 1340 (1980); Dugery v. Dugery, 276 Pa.Superior Ct. 51, 419 A.2d 90 (1980), we will nevertheless remand where the record demonstrates that the lower court did not consider all of the relevant factors. Commonwealth ex rel. Vona v. Stickley, 287 Pa.Superior Ct. 296, 430 A.2d 293 (1981); Dena Lynn v. Harvey H. F., 278 Pa.Superior Ct. 95, 419 A.2d 1374 (1980). Here, without full stenographic notes, we cannot determine whether the lower court did consider all of the relevant factors.

The lower court suggests, however, that “[t]he lack of a record should be deemed waived by defense counsel by reason of his failure to request the same.” Slip op. at 5. The court also says:

[I]f either party requests the presence of a stenographer their request will be granted as a matter of course.
We note our Appellate Courts’ aversion to entertain a matter on appeal without the benefit of a recorded transcript of testimony.

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Bluebook (online)
437 A.2d 974, 293 Pa. Super. 29, 1981 Pa. Super. LEXIS 3802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pawol-v-pawol-pasuperct-1981.