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decided: September 22, 1975.


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.


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 rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Superior Ct. 301, 310 A.2d 672 (1973).

The problem in the instant case revolves around two critical facts. First, since the 1971 decree, the appellee's salary -- his sole source of income -- has risen from $17,400 to $29,500. Second, although appellant's income has declined, from $130.00 to $90.00 per week, appellant acknowledges that her earning capacity is at least $130.00 per week.

The appellant claims that in light of the luxuries that the father is able to afford -- a fine home, two cars with the ancillary maintenance costs, nursery school for one of his children from his second marriage, generous allowance for entertainment and personal maintenance -- he should be required to pay more towards the support of his son Michael, so that Michael, too, can share in some of the affluence.

On the other hand, a mother also has an obligation to support her child. The test is not what her actual earnings are, but what her earning capacity is. Such has always been the law governing a father's duty of support. See, e.g., Gitman, supra; Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964); Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 311 A.2d 701 (1974); Shuster v. Shuster, 226 Pa. Superior Ct. 542, 323 A.2d 760 (1974); Commonwealth ex rel. Fishman v. Fishman, 213 Pa. Superior Ct. 342, 247 A.2d 810 (1968); Arena, supra. Cf. Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa. Superior Ct. 364, 292 A.2d 502 (1972). Recent cases have applied the principle with equal weight to the mother. Dana, supra; Kaper v. Kaper, 227 Pa. Superior Ct. 355, 324 A.2d 483

[ 236 Pa. Super. Page 30]

(1974); White v. White, 226 Pa. Superior Ct. 499, 313 A.2d 776 (1973).

The appellant testified as follows on the subject of her earning capacity:

"Q. Have you looked for other higher paying work?

"A. There would be higher paying jobs that would take me into Center City. I cannot do that. I would be too far from the place of residence, too far from my son.

"Q. Isn't it true that you have refused to work anywhere in Center City where the higher paying jobs are available?

"A. Yes.

"Q. . . . Did she [an employment counselor] tell you that you could get a job in Center City with your skills for perhaps a hundred and fifty dollars per week?

"A. Yes."

Further, appellee's witness, an employment counselor, testified that appellant was qualified for currently available jobs with starting salaries of $125 to $130 per week. Thus, there is no question that the mother's take-home pay does not reflect her full earning capacity.

Ordinarily, given the father's income, a higher support order would be proper. Although appellee claims expenses in excess of his income, a child cannot be denied a fair support order because one of the parents is living above his means. Further, the father is living well. He has taken on substantial mortgage payments; he provides generously for the two children by his second marriage; his wife can afford not to work; his list of expenses indicates that his family has considerable material luxury. Michael is entitled to benefit from his father's good fortune. On the other hand, we cannot ignore entirely the mother's unwillingness to increase her income.*fn4

[ 236 Pa. Super. Page 31]

Weighing all the factors, as we must, we conclude that the order of support is inadequate.*fn5 To order payments of $125.00 per week as requested by appellant would be confiscatory. Nonetheless, we believe that the order should be increased to assure Michael some of the advantages that accrue to appellee's other children.

The case is remanded to the lower court for proceedings consistent with this opinion.


Case remanded.

Dissenting Opinion by Jacobs, J.:

I must respectfully dissent.

[ 236 Pa. Super. Page 32]

In Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 251, 311 A.2d 701, 703 (1973), we reiterated the well known rule that "'[i]n a support proceeding, the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits.' Commonwealth ex rel. Page 32} Friedman v. Friedman, 223 Pa. Superior Ct. 66, 67, 297 A.2d 158[, 159, allocatur refused, 223 Pa. Superior Ct. xxxv ] (1972). Absent a clear abuse of discretion an appellate court will not disturb a support order of the court below. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Superior Ct. 116, 118, 111 A.2d 157 (1955)."

Search as I may, I cannot find any abuse of discretion on the part of the lower court which fixed the order at $170.00 per month.

I would affirm the court below.

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