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decided: May 13, 1975.



Joel N. Brewer, Community Legal Services, Law Center Germantown, Philadelphia, for appellant.

No appearance for appellee.

Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a concurring opinion. Eagen, J., did not participate in the consideration or decision of this case.

Author: Pomeroy

[ 462 Pa. Page 38]


Joseph LeNoir, the appellant, and Patricia LeNoir Costello, the appellee, were divorced in 1966. They have one daughter, Jane, aged 14, who is residing with her mother. The proceedings from which this appeal arises commenced when Patricia filed on May 18, 1972 in the court below a petition for Jane's support.*fn1 No answer to this petition was filed.

[ 462 Pa. Page 39]

At the hearing upon the petition, Patricia testified that while she and Joseph were married he had been employed as an electrical engineer, earning between $8,000 and $20,000 a year, and that since their divorce Joseph had worked at various times as a carpet layer, earning $30 per day, and had worked also as a bartender. Mrs. Costello testified further that at the time of the hearing Joseph was making no contribution to Jane's support. She said that she herself was employed as a waitress, and was earning approximately $110 per week.

Joseph, who was not represented by counsel at the hearing, testified that approximately a year previously he had been involved in an automobile accident in which he suffered two broken arms, two crushed elbows, a broken shoulder, and a broken wrist. He said also that he had lost his job as a design draftsman with an engineering firm as a result of his physical condition following the accident; that he had worked temporarily as a carpet layer and bartender; and that despite earnest efforts he had been unable to find permanent employment, and was presently unemployed. Finally, he testified that for the

[ 462 Pa. Page 40]

    past six months he had been receiving public assistance,*fn2 and that his hospital bill of $5,000 had been paid by the welfare authorities.

At the close of the hearing the court ordered Joseph to pay appellee twenty dollars per week towards the support of Jane. On appeal, the Superior Court affirmed, per curiam. We granted allocatur,*fn3 and this appeal followed.*fn4

It is beyond question that every parent has a duty to support his or her minor children. This duty of support rests upon both mothers and fathers; each parent is obligated to contribute to the support of his or her children in accordance with the parents' respective abilities to pay. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Each parent's ability to pay is dependent upon his or her property, income and earning capacity, Conway v. Dana, supra at 540, 318 A.2d at 326, and is to be determined as of the time at which support payments are sought, Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1968); Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1954); Commonwealth ex rel. Simmler v. Simmler, 134 Pa. Super. 339, 4 A.2d 215 (1938). A support order must be fair and not confiscatory and must make due allowance for the reasonable living expenses of the parent, Commonwealth ex rel. Goodman v. Delara, 219 Pa. Super. 449, 453, 281 A.2d 751, 753 (1971).

We recognize that the amount of a support order is largely within the discretion of the trial court, and

[ 462 Pa. Page 41]

    its judgment should not be disturbed on appeal absent a clear abuse of that discretion. See Commonwealth ex rel. Marvin v. Marvin, 193 Pa. Super. 179, 164 A.2d 128 (1960); Commonwealth ex rel. Scarpato v. Scarpato, 190 Pa. Super. 45, 151 A.2d 783 (1959); Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437 (1953). In this case, we are satisfied that such a clear abuse of discretion did occur. The record is barren of evidence that Joseph is financially able to contribute at this time to the support of his daughter.*fn5 At the hearing, Patricia testified as to Joseph's earnings at various times in the past but offered no information as to his income at the time of the hearing. Joseph's testimony that he has been searching without success for a job and that he was receiving public assistance was uncontradicted. The record contains no evidence of Joseph's assets or of his living expenses, nor any indication that his failure to find a job was in any way his own fault.

The trial court apparently based its decision upon Joseph's past earnings and a belief that his financial situation could be improved.*fn6 Evidence of past earnings

[ 462 Pa. Page 42]

    has no bearing on the determination of present income;*fn7 while it does have relevance to earning capacity, it must be considered in the light of the father's uncontradicted testimony that his efforts to obtain employment had been fruitless. The court's apparent belief that petitioner was able to contribute to his daughter's support in larger measure than the evidence indicated was speculation and is insufficient to sustain a support order.*fn8

The order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas for further proceedings consistent with this opinion.*fn9

JONES, Chief Justice (concurring).

While I agree with the reasoning and result expressed by the Majority, I am distressed that my brethren felt it necessary to grant allocatur in a case challenging the legitimacy of a support order. This Court is presently

[ 462 Pa. Page 43]

    confronted with an almost overwhelming backlog, and the consideration of an appeal involving an issue of law long-settled by a definitive body of precedent cannot alleviate our burden. We misconstrue our appellate function if we perceive our obligation as encompassing the review of every erroneous decision of the lower courts. It is my view that the consideration of this matter was undertaken to correct the harm visited upon the appellant. Such individual attention is perhaps laudable but ignores the reality of current appellate dockets.

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