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COMMONWEALTH EX REL. BOROCHANER v. BOROCHANER (12/11/72)

decided: December 11, 1972.

COMMONWEALTH EX REL. BOROCHANER
v.
BOROCHANER, APPELLANT



Appeal from order of Court of Common Pleas of Bucks County, April T., 1971, No. 19, in case of Commonwealth ex rel. Geraldine Borochaner v. Irving Borochaner.

COUNSEL

David H. Kubert, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Spaulding, J., concurs in the result. Jacobs, J., dissents.

Author: Cercone

[ 223 Pa. Super. Page 269]

This is an appeal by the husband from the lower court's refusal to give a greater reduction in the amount of support payable by him to his wife and two children (Glenn aged 7 and Gail aged 18).

The original order for their support was entered on May 6, 1971 and provided for a total support of $120 weekly, allocated as follows: $50 for the wife, $40 for Gail and $30 for Glenn.

In November, 1971, the husband filed a Petition for Reduction on the basis of reduced earnings. The Petition was later amended to include as a reason for reduction the daughter Gail's emancipation, appellant contending that there was no legal duty upon him to continue to support her while she was attending nursing school.

The Petition came on for hearing in February, 1972, after which the court reduced the order to $80 per week, not allocating or apportioning that amount among the wife and children holding that the father was required to continue the daughter's support while she was attending nursing school as he had in effect agreed to do and because such continued support did not cause "undue hardship" upon him.

In making its February order, the court below considered the $200 gross weekly salary that was being earned by the husband at the time of the original $120 weekly order, and compared it with the presently reduced gross salary of $150 weekly. The court did not use the present net income of $123.15 (though this amount was not contradicted) because the original order was based on the gross amount of $200.00 and defendant had not introduced the net amount in that action. The court, therefore, chose to compare the gross earnings, and so determined there was only a $50 difference between the two, which he allocated between the parties by reducing the support order by $40 weekly,

[ 223 Pa. Super. Page 270]

    the court reasoning that by this action it was in effect giving the husband a $40 credit.

However, the husband does not so view the court's action. He reasons that before his reduction in salary he had $80 left over after payment of the support order; now, he only has $45.13 left over and he cannot live on that. It is his contention that he should be ...


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