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BELL v. BELL (06/21/74)

decided: June 21, 1974.

BELL, APPELLANT,
v.
BELL



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, Jan. T., 1971, No. 667, in case of Helen Mae Bell v. Walter F. Bell, Jr.

COUNSEL

Robert K. Stitt, III, for appellant.

Ronald J. Bua and Dane Critchfield, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 228 Pa. Super. Page 281]

This is an appeal from an order of the Court of Common Pleas of Allegheny County reducing a support order for appellant-wife from $170.00 per month to $75.00 per month.

The initial support order was entered by Judge John G. Brosky on January 15, 1971, following a full hearing, directing appellee to pay $120.00 per month for the support of appellant. On March 17, 1972, another hearing was held before Judge Brosky resulting in an order increasing the appellee's support payment to $170.00 per month. This amount was predicated upon appellee's gross wages as a chauffeur of $643.50 per month, net earnings of $506.08 per month, or one-third of the husband's spendable income. Commonwealth ex rel. Lipsky v. Lipsky, 214 Pa. Superior Ct. 215, 251 A.2d 729 (1969).

Following the filing of petitions by both parties requesting modifications of the March 17 order, a hearing was held on July 7, 1972, by Judge Thomas A. Harper, wherein Judge Harper reduced the amount of the support order to $75.00 per month. Appellant appeals from the imposition of this order,*fn1 and contends that the lower court erred in reducing the March 17 order of $170.00 to $75.00 because the appellee failed to show any evidence of a material change in conditions or circumstances in the period following the order of March 17.*fn2

[ 228 Pa. Super. Page 282]

Orders of support are not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa. Superior Ct. 163, 280 A.2d 456 (1971); Commonwealth ex rel. Meth v. Meth, 188 Pa. Superior Ct. 553, 149 A.2d 488 (1959). However, the order may be modified only by a good faith showing that circumstances existing when the original order was made have materially and substantially changed. Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa. Superior Ct. 270, 184 A.2d 288 (1962); Commonwealth ex rel. Crandall v. Crandall, 145 Pa. Superior Ct. 359, 21 A.2d 236 (1941). In considering whether the support order should be reduced, the court must take into consideration all relevant facts, Commonwealth ex rel. Fryling v. Fryling, 220 Pa. Superior Ct. 68, 283 A.2d 726 (1971), and it is the burden of the party seeking to modify the order to show by competent evidence such a change in conditions as will justify a modification. Commonwealth ex rel. Brennan v. Brennan, 202 Pa. Superior Ct. 255, 195 A.2d 150 (1963); Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Superior Ct. 541, 185 A.2d 822 (1962).

In the instant appeal, the evidence presented to support appellee's contention that circumstances had changed was that: appellant had exclusive possession of the appellee's house, with a rental value of $100.00 a month; appellant receives $10.00 a month from the rental of a garage; appellant's daughter by a prior marriage who resides with appellant, supports her mother by providing food, medicine and approximately $40.00 per month in cash. Appellee contends that these issues were never presented or settled in the prior support order,

[ 228 Pa. Super. Page 283]

    and should be considered sufficient changed circumstances as to uphold the ...


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