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CONWAY v. DANA (03/26/74)

decided: March 26, 1974.

CONWAY
v.
DANA, APPELLANT



Appeal from order of Superior Court, April T., 1972, No. 194, affirming order of Court of Common Pleas, Family Division, of Allegheny County, No. D1878 of 1970, in case of Eleanor Conway v. Warren B. Dana.

COUNSEL

Paul H. Titus, with him Kaufman & Harris, for appellant.

No oral argument was made nor brief submitted for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones dissents believing that allocatur was improvidently granted.

Author: Nix

[ 456 Pa. Page 537]

The sole issue presented by this appeal is whether the lower court abused its discretion in denying appellant's petition for reduction of an order of support awarded for the benefit of his two minor children.

Appellant, Warren B. Dana, filed a petition for reduction of a support order requiring him to pay $250.00 per month for support of his two daughters as well as an additional $50.00 per month toward orthodontist fees. The court below denied the petition and a timely appeal was taken to the Pennsylvania Superior Court. This appeal was discontinued*fn1 and a second hearing was held below upon the petition for reduction. The court again refused to grant the petition and an appeal was taken to the Superior Court which affirmed the action of the court below in a per curiam opinion. Conway v. Dana, 221 Pa. Superior Ct. 827, 292 A.2d 428 (1972). We granted allocatur.*fn2

The appellant has predicated his request for a reduction upon the following material change of circumstances: A marked decrease in his income from approximately $12,400 per year to $10,600 per year, reducing his take-home pay to $625 per month. In addition, since the entry of the support order the appellee, his former

[ 456 Pa. Page 538]

    wife, has secured employment and receives a net salary of $700.00 per month.

A father has the responsibility to support his children, Hecht v. Hecht, 189 Pa. Superior Ct. 276, 150 A.2d 139 (1959) to the best of his ability, Commonwealth v. Cleary, 95 Pa. Superior Ct. 592 (1929). His capacity to support is determined by the extent of his property, his income, his earning ability and the station in life of the parties. See Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa. Superior Ct. 115, 184 A.2d 291 (1962); Commonwealth ex rel. Weisberg v. Weisberg, 193 Pa. Superior Ct. 204, 164 A.2d 54 (1960); Hecht v. Hecht, supra; Commonwealth ex rel. Thompson v. Thompson, 171 Pa. Superior Ct. 49, 90 A.2d 360 (1952); Commonwealth ex rel. Goldenberg v. Goldenberg, 159 Pa. Superior Ct. 140, 47 A.2d 532 (1946); Commonwealth ex rel. Firestone v. Firestone, 158 Pa. Superior Ct. 579, 45 A.2d 923 (1946); and Commonwealth ex rel. Bowie v. Bowie, 89 Pa. Superior Ct. 288, (1926).

We recognize the obligation of the father to make personal sacrifices to furnish the children with the basic needs; however, the order should not be unfair or confiscatory. The purpose of a support order is the welfare of the children and not the punishment of the father. Commonwealth ex rel. Shumelman v. Shumelman, 209 Pa. Superior Ct. 87, 89, 223 A.2d 897, 898 (1966); see also Commonwealth ex rel. Arena v. Arena, 205 Pa. Superior Ct. 76, 207 A.2d 925 (1965); Commonwealth v. Camp, 201 Pa. Superior Ct. 484, 193 A.2d 685 (1963).

A review of the record impressed upon us that the burden of support became more onerous as a result of the reduction in the income of appellant. However, we do not find that this particular change of circumstances, standing alone, created a situation so oppressive and unfair that a denial ...


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