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COMMONWEALTH EX REL. KAPLAN v. KAPLAN (09/22/75)

decided: September 22, 1975.

COMMONWEALTH EX REL. KAPLAN, APPELLANT,
v.
KAPLAN



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 239954, in case of Commonwealth of Pennsylvania ex rel. Eileen Kaplan (now Weingrad) v. Gary Kaplan.

COUNSEL

Barry Goldstein, with him Malcolm H. Waldron, Jr., for appellant.

Henry A. Stein, with him Mesirov, Gelman, Jaffe & Cramer, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Price and Van der Voort, JJ., join in this dissenting opinion.

Author: Hoffman

[ 236 Pa. Super. Page 27]

The sole issue in the instant case is whether the lower court abused its discretion when it increased a pre-existing support order of $130.00 per month by $40.00 per month.

Appellant, Eileen Weingrad, formerly Eileen Kaplan, married appellee Gary Kaplan, on December 24, 1961, in Philadelphia.*fn1 On May 5, 1963, appellant gave birth to a child, Michael. Thereafter, the couple separated. Appellant filed a complaint in the Philadelphia County Court on March 24, 1964, in which she asked that appellee be ordered to provide support for his son. On February 19, 1965, the court ordered appellee to pay $100.00 per month, pursuant to a stipulation by the parties. In 1971, appellant filed a petition to increase the order of support. On February 5, 1971, the court entered an order of $130.00 per month. At that time, appellee was working in New York City and was earning $17,400 per year.

On October 1, 1974, appellant again petitioned for an increase in the amount of the support order. She alleged a change of circumstances as a basis for the increase: her wages had been reduced from $130.00 per week to $90.00 per week, the child's needs, especially due to medical expenses, had increased sharply, appellee was earning $29,500.00 per year, had purchased an expensive home in a fashionable section of New Jersey, and owned two "luxury" cars. A hearing was held on December 13, 1974, followed by an order dated December 30, 1974, in

[ 236 Pa. Super. Page 28]

    which the court ordered that appellee pay $170.00 per month. Appellant requested this Court to increase that amount to $125.00 per week.

Initially, we must reiterate several blackletter principles of law governing child support.*fn2 The purpose of a support order is to protect and to advance the welfare of the child. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Commonwealth ex rel. Arena v. Arena, 205 Pa. Superior Ct. 76, 207 A.2d 925 (1965); Commonwealth ex rel. Firestone v. Firestone, 158 Pa. Superior Ct. 579, 45 A.2d 923 (1946). The responsibility of the parents, to support the child to the best of their ability, consistent with their own station in life, is "well nigh absolute." Firestone, supra, at 581, 45 A.2d at 924. See also, Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967);*fn3 Commonwealth v. Wingert, 173 Pa. Superior Ct. 613, 98 A.2d 203 (1953). While personal sacrifices can be demanded of the parents to meet such an obligation, an order should not be punitive or confiscatory. Conway, supra; Arena, supra. Despite the ease with which an appellate court may recite such principles, we are mindful of the unique facts presented in every support case: "No two support cases are ever alike. Circumstances,

[ 236 Pa. Super. Page 29]

    although similar in some respect, may differ materially in other respects. It is for the court to consider all the circumstances. It is difficult for an appellate court to state rules equally applicable to all cases." Hecht, supra at 281, 150 A.2d at 142. See also, Commonwealth ex ...


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