Smith v. Smith

426 A.2d 1184, 285 Pa. Super. 146, 1981 Pa. Super. LEXIS 2296
CourtSuperior Court of Pennsylvania
DecidedMarch 13, 1981
DocketNo. 776
StatusPublished
Cited by2 cases

This text of 426 A.2d 1184 (Smith v. Smith) 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
Smith v. Smith, 426 A.2d 1184, 285 Pa. Super. 146, 1981 Pa. Super. LEXIS 2296 (Pa. Ct. App. 1981).

Opinion

HESTER, Judge:

Presently before us is appellant William B. Smith’s appeal from the order of support of the lower court dated March 27, 1979.1

The Order directed appellant to pay: (a) $75 a week for the support of appellee-wife; (b) $35 a week for the support of his minor son who resides with the appellee; (c) the mortgage, taxes and insurance on the parties’ entireties property (appellee and the minor son reside therein); (d) the electric and/or oil and gas bills on said entireties’ property; and (e) $15 a week arrearages which may be liquidated from the time of the entry of a temporary order of support dated November 14, 1978.

We affirm the subsections of the appealed-from order identified above as (a), (b), (c) and (e) and will remand subsection (d).

Appellant raises five issues on appeal: (1) that appellee did not meet her burden of establishing her “needs” and those of her nine-year old son; (2) that in making its order, the lower court failed to consider appellee’s “earning capaci[149]*149ty”; (3) that the lower court erred in ordering appellant to pay the actual monthly expenses (e. g. a mortgage, taxes, insurance, electric and/or oil and gas) on the parties’ entire-ties property in which appellee and the minor son reside. Appellant contends that this portion of the order lacks requisite specificity, is too indefinite, and places the appellant in a position of financial uncertainty.

We have reiterated our statement found in Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 574, 407 A.2d 389 at 390-1 (1979) that:

Our scope of review is limited to a determination as to whether the order of support can be sustained on any valid ground. Marvin v. Marvin, 193 Pa.Super. 179, 164 A.2d 128 (1960). We must determine whether there was sufficient evidence to sustain the lower court or contrariwise whether the lower court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence. Com. ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976); Com. ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975); Com. ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 326 A.2d 908 (1974).
In reviewing the lower court’s action to determine whether an abuse of discretion has occurred, we recognize that “ ‘[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Com. ex rel. Levy v. Levy, 240 Pa.Super. 168, 177, 361 A.2d 781, 785 (1976).

At hearing, appellant testified that he is a (50%) shareholder in the Jenkinstown Garage servicing the Jenkins-town, Pennsylvania area. Other than the sale of gasoline and related products, his business performs state inspections and complete automotive repairs. Appellant’s accountant testified that for the fiscal year ending June 30, 1978 the [150]*150Jenkinstown Garage reported gross revenues of $338,871.00, of which $240,189.00 was attributable to gasoline sales. Appellant testified that he and his partner’s gross weekly salary from the business is $275.00 and that he and his partner set their own salaries. In addition, appellant testified that he receives $440.00 per month from the rental of two houses and two of four semi-detached garages.2 Title to these rental properties is in the names of both appellant and appellee.

Contrariwise, appellee testified that of her own personal knowledge, her husband’s business income was substantially greater than a gross of $275.00 per week. She testified that both the appellant and his partner receive substantial unreported cash payments related to their service business. To document same, she testified that in contemplation of a permanent move to Arizona because of her poor health, she and her three children (the two daughters are presently in the general custody of the appellant) visited Arizona for an 8-month period spanning 1976 and 1977, and during that time her husband sent her all of his net reportable income and additional funds exceeding $1,000.00. During that same period, the parties’ banking records reflect that the appellant deposited an additional $7,740.00 into a joint checking account.3 During that eight-month span, the appellant flew to Arizona on three separate occasions to visit his family.

Appellant testified that he is paying approximately $1,200.00 per year towards his daughter’s college education and that during the Christmas vacation period immediately prior to hearing, he had taken his three children to Disney-world, Florida for a ten-day period, but had spent a total of only $400.00 on that vacation. Appellant also confirmed that he owns a few cars, a motorcycle and a small sailboat.

Appellant testified that he and his wife had paid $22,-000.00 for their entireties’ residence which he estimated to [151]*151be worth approximately $50,000.00; that he and his wife paid $13,000.00 for the two jointly-owned rental properties with four garages which he estimated to be worth $60,-000.00-$70,000.00, and that in 1970 he and his business partner had paid $50,000.00 for the business property.

In its opinion, the lower court concluded that appellant’s testimony concerning his limited income was unworthy of belief; rather, that the evidence revealed that appellant’s net income after taxes was in excess of $500.00 per week; and that appellant had income well in excess of that which he had reported and to which he testified. The lower court apparently concluded that the parties’ previous lifestyle, the parties’ joint and appellant’s individual accumulation of real estate; appellant’s blatantly evasive and erroneous answers to certain questions and appellant’s known expenditures, all contributed to the court’s independent finding as to appellant’s real income. For instance, appellant testified that his garage employed one other person while his accountant confirmed the fact that there were five or six other employees. Appellee testified that she helped her husband at the garage on a daily basis prior to her 8-month removal to Arizona. It was during that period she obtained first-hand knowledge of her husband’s business affairs. Appellant specifically stated that his wife never helped him at the station. He claimed that “she was too busy hitting the shopping centers.” (R. 206a)

The lower court did not believe appellant’s testimony concerning his alleged limited income. Nor do we.

The trial court’s determination of appellant’s income is within its province.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthews v. Matthews
34 Pa. D. & C.5th 415 (Berks County Court of Common Pleas, 2013)
Francis v. Francis
517 A.2d 997 (Supreme Court of Pennsylvania, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
426 A.2d 1184, 285 Pa. Super. 146, 1981 Pa. Super. LEXIS 2296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-pasuperct-1981.