Riess v. De Luca

510 A.2d 1239, 353 Pa. Super. 622, 1986 Pa. Super. LEXIS 10937

• Court: Supreme Court of Pennsylvania
• Decided: June 6, 1986
• Docket: 00068
• Status: Published

Opinions

BROSKY, Judge:

This appeal is from the order requiring appellee to place $10 a week into a bank account for the educational needs of the parties’ two minor children. Appellant contends that: (1) the trial court erred in refusing to follow the guidelines for support that have been set forth by the Pennsylvania Supreme Court; (2) the trial court erred in questioning appellant’s candor and finding that appellant was attempting to punish appellee for exercising her right of visitation; (3) the record contains ex parte documents prejudicial to appellant. We agree with appellant’s first contention and, accordingly, vacate the order of the trial court and remand this case for a recalculation of the parties’ support obligations.

The parties to this action were married in January of 1970. Two children were born of this marriage, Jacquelyn, born July 29, 1971, and Michelle Lynn, born September 7, 1974. The parties were divorced in September of 1981, at which time they both resided in New Jersey. Prior to the entry of the divorce decree, the Superior Court of Burlington County, New Jersey, had issued an order awarding custody of the children to appellant. As part of the divorce decree, the New Jersey court ordered appellee to put $10 per week into a bank account for the educational needs of the children.

Subsequently, the parties moved to Pennsylvania and, in June of 1982, appellant filed a support action in Philadelphia County. This action was dismissed for reasons not revealed by the record.

On March 2, 1984, appellant filed a complaint for support in Delaware County. A hearing was then held before a master who recommended the entry of a support order in the amount of $65 per week. Following entry of the recommended order, appellee filed a timely appeal, and a hearing de novo was held before the trial court on June 13, 1984. Subsequently, appellee petitioned for a rehearing in order to have the opportunity to introduce additional evidence in light of the Supreme Court’s opinion in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). A rehearing was held on November 1, 1984 and, on December 19, 1984, the lower court entered an order requiring appellee to pay $10 per week into a bank account for the educational needs of the children. This appeal timely followed.

Appellant first argues that the court below erred in refusing to follow the guidelines set forth in Melzer, supra, for the calculation of a parent’s support obligation. We agree.

In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent’s total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent’s total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.

In the instant case, the court below made none of the determinations mandated by Melzer. We must summarily reject appellee’s argument that the hearing court did, in fact, apply Melzer, but that its statement that “we are convinced that the Respondent [appellee] is paying her fair share towards the support of the children” was equivalent to a finding that she had no ability to pay any amount in addition to the amounts she was already paying. We are hardly persuaded that the hearing court’s conclusory statement that appellee was paying her fair share was equivalent to a finding that her income available for support, as defined in Melzer, was zero. Moreover, appellee’s argument flies in the face of the trial court’s express statement in its opinion that:

We are not unmindful of the recent Superior [sic] Court decision of Melzer vs Witsberger, 480 A.2d 991, [505] Pa. [462] (1984). However, we do not feel that the rationale is approximate [sic] here. First, there [sic] is a Petition for an increase in support as there curently exists a New Jersey Court Order which is being obeyed. Secondly, the rationale of Melzer, supra, would not take into consideration the $35.00 per week that the mother currently contributes, nor would it include the $10.00 per week Order currently being paid.[¹]

Since the court below did not follow the dictates of Melzer, we will remand this case for the court to make determinations necessary to an application of the Melzer formula,² to determine whether and by how much the support obligation arrived at by that formula should be offset by appellee’s voluntary contributions, and to use the amount of support thus arrived at as a framework for its decision. It is so ordered.³

Order vacated and case remanded for proceedings consistent with this Opinion.

TAMILIA, J., files a concurring opinion.

1 . While we believe Melzer would apply to the instant case even if the order of the New Jersey court were considered to be a support order, our review of the record indicates that there is not sufficient support in the record for a finding that the New Jersey order requiring appellee to put $10 per week into a bank account for the educational needs of the children was, in fact, an order which determined the support obligations of the parties. We would also reiterate the point that Melzer does allow credit to be given for a parent’s voluntary contributions as long as those expenditures satisfy the obligation of reasonable and necessary support. We note that the trial court made no findings as to whether appellee’s expenditures satisfied this criterion.

2 . In determining appellant’s ability to support his children, i.e., his net income less his reasonable living expenses, the trial court should be aware that its finding that appellant earns $43,000 a year and its finding that appellant earns $1,989 every two weeks are inconsistent.

3 . In light of our disposition, we do not believe it is necessary to address issues (2) and (3). However, as to issue (2), it would appear that the trial court made a proper credibility determination.