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COMMONWEALTH EX REL. LEVY v. LEVY (04/22/76)

decided: April 22, 1976.

COMMONWEALTH EX REL. LEVY, APPELLANT,
v.
LEVY



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 73-02194, in case of Commonwealth of Pennsylvania ex rel. Rosemary Levy v. Dr. Walter Levy.

COUNSEL

Lawrence J. Richette, for appellant.

Jack M. Myers, with him Zack, Myers and Atkinson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Jacobs, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Spaeth, J.

Author: Price

[ 240 Pa. Super. Page 170]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying the appellant's petition for an increase in support for herself and her seven children. We find that the lower court abused its discretion in entering such an order. We therefore vacate the order below and remand this case to the lower court with instructions to increase the existing support award in a manner consistent with this opinion.

On September 18, 1973, the lower court ordered the appellee, Dr. Walter Levy, to provide $400 per week, or $20,800 annually, for the support of the appellant, Rosemary Levy, and their seven children. Neither of the parties, who had been separated since May 15, 1973, appealed this order. On September 16, 1974, the appellant petitioned the court below to increase the support order. After a hearing, the lower court dismissed the appellant's petition on May 14, 1975.

The record shows that when the lower court entered its initial order on September 18, 1973, Dr. Levy was employed as a professor of pathology at Temple University Medical School, earning $39,700 annually. Shortly thereafter, however, Dr. Levy obtained additional employment at the Philadelphia Medical Laboratory and

[ 240 Pa. Super. Page 171]

    at the Philadelphia College of Osteopathy from which he received approximately $8,143 per year.*fn1

In July of 1974, Dr. Levy left Temple University Medical School to become the director of the pathology laboratory at St. Agnes Hospital in Philadelphia. Dr. Levy's contract with St. Agnes Hospital called for three years of service at a salary of $70,000 per year with a six per cent increase annually. During 1974, Dr. Levy also retained his employment with the Philadelphia Medical Laboratory and the Philadelphia College of Osteopathy, earning about $10,309 annually. Thus, although Dr. Levy's total income for 1974 was approximately $66,180,*fn2 he was actually earning at the rate of $80,143 per year while he was employed by St. Agnes Hospital.

Despite his much increased salary, and three year contract, Dr. Levy remained at St. Agnes Hospital for only six months. On January 2, 1975, he began work at Hahnemann Medical College and Hospital in the dual capacity of professor of pathology and director of the pathology laboratory at an annual salary of $52,000.*fn3 In explanation of his resignation from St. Agnes Hospital, Dr. Levy testified that he had taken the job with St.

[ 240 Pa. Super. Page 172]

Agnes Hospital for the sole purpose of paying a total of $13,809 in bills incurred by his wife and children. And, once these bills were paid, he quickly returned to his more gratifying, but less lucrative, life as a teacher. On March 26, 1975, Dr. Levy resigned from his employment with the Philadelphia Medical Laboratory. However, he retained his position with the Philadelphia College of Osteopathy at a yearly salary of $1,143. Thus, he currently earns approximately $53,143 per year.

We have always held that the purpose of a support order is to determine a reasonable allowance for the support of children, keeping in mind the property and earning capacity of the parents and the station in life of the parties. Commonwealth ex rel. Shumelman v. Shumelman, 209 Pa. Superior Ct. 87, 223 A.2d 897 (1966). Once awarded, however, an order of support is not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth ex rel. Luongo v. Tillye, 229 Pa. Superior Ct. 453, 323 A.2d 172 (1974). And, it is the burden of the party seeking to modify the ...


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