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COMMONWEALTH EX REL. MCQUIDDY v. MCQUIDDY (02/02/76)

decided: February 2, 1976.

COMMONWEALTH EX REL. MCQUIDDY, APPELLANT,
v.
MCQUIDDY



Appeal from order of Court of Common Pleas of Bucks County, No. 356 (Misc.) -- 04 of 1973, in case of Commonwealth of Pennsylvania ex rel. Katherine S. McQuiddy v. R. Kirkland McQuiddy.

COUNSEL

Neil Hurowitz, and Hurowitz & Plotnick, for appellant.

R. Kirkland McQuiddy, in propria persona, and George M. Bush, and Hartzel, Bush & O'Neill, for appellee.

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

Author: Price

[ 238 Pa. Super. Page 392]

This is an appeal from an order of the lower court entered December 5, 1974 which reduced a prior consent order for the support of two minor children, ages 7 and 2. We find no abuse of discretion in this modification and reduction and will, therefore, affirm.

The parties, who were divorced in February of 1974, entered into a separation agreement dated October 11, 1973 wherein it was agreed that the amount of $90 weekly would be paid by appellee for the support of the two children and wife. Pursuant to this agreement, the amount was to have been increased to $100 weekly on September 1, 1974. A consent order in these amounts was signed by the parties pursuant to this agreement, to be entered should appellee fall into arrears for more than fourteen days. The consent order was entered in July, 1974.

The first August, 1974 payment by appellee was unilaterally reduced to $50; however, on August 5, 1974 appellee filed the petition presently before us on appeal seeking modification of the consent support order. The Bucks County rules require a preliminary conference with a domestic relations officer prior to hearing and such a conference was held on September 20, 1974, at which the parties developed a preliminary record of income, expenses, assets and other matters helpful to the lower court in subsequent hearings. The lower court conducted hearings on November 22, 1974 and December 5, 1974 and at the conclusion of such hearings entered the order now on appeal reducing the support order to $50 per week.

At the time appellee entered into the agreement and consent order he was a salaried employee of a local corporation

[ 238 Pa. Super. Page 393]

    engaged in the construction industry and was earning a gross weekly salary of $200 and a net of $165 per week. In addition the lower court found that at that time he had a $50 weekly income from other sources which translated to a total of $215 net income per week. In December of 1973 the appellee, an attorney properly qualified in this Commonwealth, elected to leave the shelter of salaried employment and entered the private practice of law which has since then become his sole source of income. At the time of the hearings in the lower court it was found that after almost a year in the private practice he had current net earnings of approximately $100 per week, or less than half of that which had been available at the time he entered into the consent order of $90 per week.

The appellate review of support orders is very narrowly defined and upon appellate review we will not, and indeed should not, interfere with the lower court's determination absent a very clear abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Superior Ct. 116, 111 A.2d 157 (1955).

It is not for us to decide whether we would have made a similar order, or in fact, any order at all, but merely to determine whether the trial court is chargeable with an abuse of discretion. Commonwealth ex rel. Groff v. Groff, 173 Pa. Superior Ct. 535, 98 A.2d 449 (1953). As our court stated in Irwin Borough Annexation Case (No. 1), 165 Pa. Superior Ct. 119, 133, 67 A.2d 757, 764 (1949):

"'An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused.' Mielcuszny v. Rosol, 317 Pa. 91, 93, 176 A. 236. 'When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden;

[ 238 Pa. Super. Page 394]

    it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power': In re Garrett's Est., 335 Pa. 287, 292, 6 A.2d 858."

Judge Bodley, of the Court of Common Pleas of Bucks County, reviewed the testimony in his opinion and said of it, in part:

"The foregoing is a portrait of a tragic and all too common consequence of the separation of young married people who have children. Each, in the opinion of the Hearing Judge was credible. The alleged expenses of each are modest indeed. There is little doubt that the Relatrix requires more income to sustain herself and her children under her present circumstances than she now receives from her employment and the contribution of the Respondent. But the parties have been divorced and the sole question before the Court is whether or not there has been a change of circumstances affecting the interest of the parties between the time of the agreed $90.00 per week order and the time of hearing. A material change in such circumstances appears clear in this case. Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa. Superior Ct. 270 (1962). Not only have the parties been divorced, thus automatically reducing the agreed order by the sum of $30.00, but the Respondent is earning substantially less income than he was at the time of the original agreement. It is true that we must look beyond actual earnings and consider earning power and the nature and extent of the Respondent's property and other financial resources. Shuster v. Shuster, 226 Pa. Superior Ct. 542, 547 (1974). The Hearing Judge has done that and in the exercise of his discretion reduced the order to the sum of $50.00.

[ 238 Pa. Super. Page 395]

"While counsel for the Relatrix, in terms often less than complimentary, challenged the truthfulness of the Respondent's testimony, the Hearing Judge does not share his views and chooses to accept the testimony of a member of this Bar at face value. He would be chagrined were there to be later offered proof of deception. There has been no such proof offered, and it is hoped that the Respondent's decision to abandon the security of the payroll for the vagaries of the private practice of law will be in the future a rewarding one, though the source of some deprivation for the time being. It is to be hoped that the latent 'earning power' to be found in every young lawyer will emerge with the passage of time and will enure to the benefit of Respondent's minor children as well as to himself. That earning power should not be equated to the higher earnings which he might for the time being command as a salaried employee at the expense of abandonment of his professional career. We do not think that it is such a concept of earning power which we are to look for when we look beyond actual earnings in our search for ability to pay. The Order entered was intended to be just as to both parties and to their children and it is hoped that such will prove to be the case."

In a support proceeding, the trial judge who sees and hears the witnesses is in a better position than the Pennsylvania Superior Court to decide the issue on its merits. Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 311 A.2d 701 (1973).

Applying the applicable principles to the matter herein under review we do not find any abuse of discretion on the part of the lower court.

The order entered by the lower court on December 5, 1974 is affirmed.

Disposition

Order affirmed.

[ 238 Pa. Super. Page 396]

Dissenting Opinion by Spaeth, J.:

The relatrix, Katherine S. McQuiddy, appeals from an order entered by a judge of the Court of Common Pleas of Bucks County reducing a pre-existing support order from $100 to $50 per week. Although I recognize fully the very narrowly circumscribed appellate review of support orders, I cannot agree that the reduction should stand.

I

It is axiomatic that in nonsupport proceedings we will not interfere with the lower court's determination absent a clear abuse of discretion. Commonwealth ex rel. Voltz v. Voltz, 168 Pa. Superior Ct. 51, 53, 76 A.2d 464, 465 (1950). Indeed, where, as here, the testimony of the defendant concerning his assets and earnings is challenged, as the reviewing court we must give considerable weight to the conclusions of the lower court. Commonwealth ex rel. Kane v. Kane, 193 Pa. Superior Ct. 98, 101, 163 A.2d 925, 926 (1960). This deference is appropriate since the judge of the lower court has seen and heard the parties. Commonwealth v. Wingert, 173 Pa. Superior Ct. 613, 617, 98 A.2d 203, 205 (1953).

The narrow issue presented by this case, then, is whether the lower court's action constituted a clear abuse of discretion. In making this determination, we must recognize that

"[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused."

Man O'War Racing Assn., Inc. v. State Horse Racing Comm., 433 Pa. 432, 451 n.10, 250 A.2d 172, 181 n.10 (1969), citing Mielcuszny v. Rosol, 317 ...


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