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decided: September 27, 1976.



Hurwitz, Klein, Benjamin & Angino, Richard C. Angino, Harrisburg, for appellant.

Martson & Snelbaker, Richard C. Snelbaker, Mechanicsburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Cercone

[ 243 Pa. Super. Page 163]

This is an appeal from an order of the court below granting the appellee-husband's petition for reduction of a prior order of support awarded for the benefit of his two children.

The initial support order, which was entered on July 11, 1972, directed the appellee to pay $105.00 per week for the support of his wife and two children. On October 24, 1973, in contemplation of divorce, the parties executed a property settlement agreement which provided, inter alia, that the amount of support be reduced to $90.00 a week for the two children alone. Notwithstanding this reduction the appellee fell almost $700.00 in arrears in 1974, and filed his first petition for reduction in November of that year.

[ 243 Pa. Super. Page 164]

At the hearing held pursuant to appellee's first petition for reduction, evidence was introduced establishing that he had experienced an approximate 20% increase in earnings for 1972 and 1973.*fn1 It was further adduced at this hearing that appellee had remarried and recently acquired a new home and other substantial assets. Accordingly, this initial petition for reduction was denied.

In April of 1975, a contempt hearing was held relative to appellee's arrearages of nearly $1,000. At this time appellee stated his net income to be $192.00 per week. Nevertheless, the lower court made no adjudication as to contempt, but rather reduced the appellee's support obligation to $80.00 per week.*fn2

Less than two months later, appellee petitioned for a further reduction. On September 9, 1975, a hearing was conducted on this petition. At this hearing appellee contended that a change in circumstances entitled him to an additional reduction in support. Specifically, appellee testified that he recently had been demoted from sales manager to salesman. As a result of this demotion his net income was reduced to $178 per week. Furthermore, he testified that the necessary business expenses of a salesman would reduce this amount even further by $30 to $35 per week. Thus, his weekly take home pay was then approximately $145. The lower court held that these figures were adequately supported by the evidence and reduced appellee's support order to $55 per week for the two children.*fn3 It is from this latter order that the instant appeal was taken.

[ 243 Pa. Super. Page 165]

It is well settled that the function of this Court in reviewing a support order is to ascertain whether there was sufficient evidence to sustain the order, and whether the lower court acted in abuse of its discretion. Commonwealth ex rel. Halderman v. Halderman, 230 Pa. Super. 125, 326 A.2d 908 (1974); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974); Commonwealth v. Testa, 226 Pa. Super. 585, 323 A.2d 199 (1974). When considering a petition to modify an existing support order, the lower court must necessarily take into account all pertinent facts. Bell v. Bell, 228 Pa. Super. 280, 323 A.2d 267 (1974). It is, of course, incumbent upon the party seeking modification to present competent evidence which establishes such a material and substantial change in circumstances as to warrant modification. Id. ; Shuster v. Shuster, supra.

"Although the reduction of a support order is largely within the discretion of the lower court, it must be based upon facts appearing in the record which shows such a permanent change in the appellee's circumstances as to require a modification of the existing order." Bell v. Bell, 228 Pa. Super. 283, 323 A.2d 269.

Having thoroughly reviewed the record in the instant appeal, we are constrained to conclude that the evidence was insufficient to support the reduction, and that the lower court failed to consider all of the relevant facts.

While there is no doubt that a change of circumstances occurred when appellee was demoted from sales manager to salesman, the evidence does not establish that the change was so material and substantial as to justify modification of the support order. Bell v. Bell, supra; Shuster v. Shuster, supra. In April of 1975 appellee stated that his net weekly income was $192. At the September, 1975 hearing he testified that as a result of his demotion his weekly take-home pay had been decreased to $178, and necessary business expenses would

[ 243 Pa. Super. Page 166]

    further reduce this amount to approximately $145. Appellee also explained that at the expiration of the initial thirteen week pay period his net salary would be cut to $90 per week.*fn4 However, he also testified that as a salesman his salary would be supplemented by commissions earned on sales. Most importantly, he testified that he had earned commissions during the initial thirteen week period, but that he would not receive the commissions until the second thirteen week period. Clearly these earned commissions are income which should be considered when determining the extent of a party's ability to pay support. The court below, however, did not take these commissions into account. This was error. When the commissions are considered together with his fixed salary it may very well be determined that appellee has not suffered a material and substantial change in his financial circumstances. The lower court opinion does not disclose why this obviously relevant consideration was not taken into account. The reason may possibly have been that the lower court felt that the commissions earned in the first thirteen week cycle would be cancelled out by the fact that in the subsequent periods the appellee would only be drawing $90 a week as opposed to the $178 he was receiving in the initial period. This rationale, however, ignores the fact that the appellee would be earning commissions in the future also. This explanation is unacceptable since it is predicated upon sheer conjecture as to the amount of subsequent commissions. Accordingly, we find that the lower court's order was not based upon all of the relevant factors*fn5 relating to

[ 243 Pa. Super. Page 167]

    the appellee's ability to pay support and, therefore, the order cannot be sustained.

The order of the court below is reversed, and the case is remanded for further proceedings consistent with this opinion.

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