Shank v. Shank

444 A.2d 1274, 298 Pa. Super. 459, 1982 Pa. Super. LEXIS 3967
CourtSuperior Court of Pennsylvania
DecidedApril 23, 1982
Docket1091
StatusPublished
Cited by28 cases

This text of 444 A.2d 1274 (Shank v. Shank) 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
Shank v. Shank, 444 A.2d 1274, 298 Pa. Super. 459, 1982 Pa. Super. LEXIS 3967 (Pa. Ct. App. 1982).

Opinion

*461 POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting appellant-mother’s petition to increase the amount of a prior order of child support.

The initial support order, which was entered on June 21, 1976, directed appellee-father to pay $60.00 per month for the support of the parties’ only child, a minor son. In July, 1980, appellant, the mother and custodial parent, filed a petition to increase the amount of the order. This petition was granted, and an order increasing the amount of support to $100.00 per month was entered. This direct appeal by the mother followed.

On appeal, appellant-mother’s sole contention is that the lower court abused its discretion in increasing the original support order by only $40.00 per month. 1 More specifically, appellant argues that the lower court erred in (1) failing to take into consideration the separate earnings of appellee’s second wife; (2) failing to consider the standard of living maintained by appellee for his second family; and (3) entering an inadequate and unreasonable support order. Because we are unable to render a proper evaluation of these claims on the basis of the record presently before us, we reverse and remand for a full evidentiary hearing.

To begin with, this court is obliged, on an appeal from an order of child support, to review the order in light of the following axiom:

*462 “[T]he amount of a child support order is largely within the discretion of the trial judge .... A child support order must be fair, not confiscatory, and must be consistent with the parent’s station in life and customary standard of living, making due allowance for the reasonable living expenses of the parent.” Commonwealth ex rel. Cragle v. Cragle, 277 Pa.Super. 349, 352, 419 A.2d 1179, 1180-81 (1980) (citations omitted).

Accordingly, in evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court. Berry v. Berry, 278 Pa.Super. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500 (1976). Where the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing. Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981).

Herein, because the lower court failed to consider certain factors in computing appellee’s ability to pay, we are prevented from determining whether the modified order of $100.00 per month was inadequate or patently deficient.

Initially, we note that requests for modification of child support orders are governed by the following principles:

“First, that ‘the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,’ . . . second, that ‘only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order,’ . . . and third, that ‘a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification ....’” Commonwealth ex rel. Stone v. Stone, 293 Pa. Super. 427, 430, 439 A.2d 185, 187 (1981).

*463 At the hearing on appellant’s petition, appellee testified that he is employed as a driver for a distributing company and has a net income of $970.00 per month. According to his own testimony, appellee has remarried and is now supporting his second wife and their two minor children. However, the record is silent on the amount of his second wife’s income and also does not disclose to what extent, if any, her income is used to defray family expenses.

Appellant, on the other hand, receives from a public assistance program $172.00 per month for herself, $90.00 for her son, and $63.00 in food stamps, a total of $325.00 per month. Appellant testified that she recently underwent surgery to remove blood clots from her lungs, and, as a result of the surgery, “[is] not supposed to [work] but [is] going to school [full-time] anyhow.” (N.T. 8/27/80, p. 4). No evidence was introduced concerning appellant’s earning capacity. Appellant estimated the costs of supporting her son to be $274.59 per month.

After considering the above testimony, the lower court concluded, and we agree, that appellant demonstrated a change in circumstances sufficient to justify the increase in the first support order. In computing appellee’s ability to pay, however, neither the hearing officer nor the lower court inquired into the earnings of appellee’s second wile. 2 Since Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa.Super. 435, 440, 326 A.2d 883, 885 (1974), we have recognized that:

“[I]f the second wife [is] gainfully employed and if her earnings or a portion thereof [are] contributing] to the *464 family budget, such facts would be relevant in determining the father’s ability to pay for his minor children.”

Here, with the exception of the statement that appellee’s second wife is employed, the record is devoid of any evidence regarding her earnings, or to what extent her income is used to defray family expenses. Absent this line of inquiry, we cannot obtain a true account of appellee’s ability to pay for the support of the parties’ minor son. See Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 124, 403 A.2d 124, 125 (1979); Commonwealth ex rel. Travitzky v. Travitzky, supra.

Likewise, because the duty to support is one shared equally by both parents, we have held that the mother’s earning capacity is material to any court hearing on a petition for modification. Berry v. Berry, 278 Pa.Super. 30, 34, 419 A.2d 1340, 1342 (1980). The test to be applied “is not what [the mother’s] actual earnings are, but what her earning capacity is.”

In the instant case, appellant testified on the subject of her earning capacity as follows:

THE COURT: Is there any reason why [appellant] can’t work?

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Bluebook (online)
444 A.2d 1274, 298 Pa. Super. 459, 1982 Pa. Super. LEXIS 3967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shank-v-shank-pasuperct-1982.