Appeal from order of Court of Common Pleas of Delaware County, March T., 1971, No. F-17-157, in case of Commonwealth of Pennsylvania ex rel. Joan D. DiSanti v. Alexander A. DiSanti.
I. Raymond Kremer, with him Kremer, Krimsky & Luterman, for appellant.
Howard Richard, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Wright, P. J., would affirm on the opinion of President Judge Diggins. Watkins and Jacobs, JJ., dissent.
[ 221 Pa. Super. Page 437]
The intricacy and novelty of the interesting question as to the treatment of a profit sharing program has apparently caused the court below to disregard the fundamental principle that the real test in support matters is not earnings but earning power, Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964), and all attendant financial conditions, including the kind and amount of assets.
The trial court, on October 5, 1971, entered an order of $310 for a wife and four children, and within the same month changed the order to $250 because, in finding the "usable income available" he had not allowed for the payment of income taxes. In ascertaining the average annual earnings of the husband, however, the trial court had excluded $5,148 which was to be paid into the profit sharing account of the husband by his law firm, which was organized as a professional corporation.
It is not necessary to establish any fixed rule as to the treatment of profit sharing in support cases. Variances can exist depending upon the specific terms of the plan relating to vesting and to withdrawal powers. Other factors that should be considered include:
(1) whether participation in the plan is relatively voluntary or involuntary;
(2) whether, and to what extent contributions are modest under the circumstances; and
(3) whether defendant already possesses substantial assets in addition to the developing value of his interest in the pension fund.
The trial court concluded that the husband's participation in the plan was wise and not suspect, and this finding was clearly within the province of the trial court. However, the finding that the $5,148 of ...