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COMMONWEALTH EX REL. KAPLAN v. KAPLAN (08/12/71)

decided: August 12, 1971.

COMMONWEALTH EX REL. KAPLAN, APPELLANT,
v.
KAPLAN



Appeal from order of Court of Common Pleas of Lackawanna County, No. 964 of 1970, in case of Commonwealth of Pennsylvania ex rel. Sally Kaplan v. Harold Kaplan.

COUNSEL

Joseph E. Gallagher, with him O'Malley, Morgan, Bour & Gallagher, for appellant.

Thomas J. Foley, Sr., with him Samuel Fallk, and Rosser, McDonald, Marcus & Foley, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 219 Pa. Super. Page 164]

This is an appeal from an order of the Court of Common Pleas of Lackawanna County reducing a support order for appellant-wife and one minor child from $120 per week to $65.00 per week. The initial support order was entered upon agreement of the parties based on appellee-husband's 1969 Federal W-2 Form. Three months after the entry of the initial order, appellee petitioned for modification on the ground that his earnings for 1970 had been substantially reduced.

[ 219 Pa. Super. Page 165]

At the hearing, appellee testified that he, his mother and a brother are the only stockholders, directors and officers of I. Kaplan Incorporated, a corporation engaged in the meat packing business. Appellee holds 20 percent of the stock and serves as vice-president.

He further testified that his basic salary from the corporation is $114.00 per week, but that this is augmented by a bonus which is computed each September, at the end of the fiscal year of the corporation. In 1969 this bonus amounted to $29,000.00. Appellee stated that in 1970 the bonus would only be $4,000.00.

Appellee's proof of his reduced earnings in 1970 was entirely limited to a copy of a resolution adopted by his mother, his brother and himself fixing the 1970 bonus for his brother and himself at $4,000.00 each. No other evidence was offered, and it appears at the time of the hearing in December of 1970 the corporation had not filed its 1970 fiscal year income tax return, nor had a balance sheet or a profit and loss statement been prepared. In addition, appellee had not filed a personal declaration of estimated Federal income tax for 1970.

On the basis of this testimony, the trial court reduced the support order. The instant appeal followed.

A determination of the amount to be awarded as support is not final inasmuch as it may be modified where the financial condition of the parties changes, or where other proper reasons are assigned. Commonwealth ex rel. Meth v. Meth, 188 Pa. Superior Ct. 553, 557, 149 A.2d 488, 490 (1959), citing Commonwealth ex rel. Barnes v. Barnes, 151 Pa. Superior Ct. 202, 203, 30 A.2d 437, 438 (1943). However, the burden is upon the party seeking a change in the amount of support to show by competent evidence such change in conditions or circumstances as ...


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