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.
[ 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 ...