Appeal from the Order dated September 8, 1975, of the Court of Common Pleas, Criminal, for Montgomery County, at No. 63 June Term, 1963. No. 207 October Term, 1976.
James N. Peck and Harry N. Moran, Jr., Norristown, for appellant.
Michael J. O'Donoghue, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Cercone, J., joins.
[ 245 Pa. Super. Page 95]
This is an appeal from an order allocating a prior support order one-half to appellee-wife and one-half to the parties' daughter. Appellant contends that the lower
[ 245 Pa. Super. Page 96]
court was not warranted in making either a retroactive or a prospective modification. For the reasons hereinafter stated, we affirm in part and reverse in part.
The original order dates back to 1963, but the issues before us go back only to 1968 at which time the lower court ordered appellant to make weekly payments for the support of his wife and daughter. Although this order was revised several times over the years,*fn1 the court never specifically allocated the order between the wife and daughter. Appellant has taken an income tax deduction for the total amount of the payments since the inception of the order. Appellee, however, has treated one-half of the amount as support for the daughter and has therefore returned only one-half of the combined award as income.*fn2 In 1975, the Internal Revenue Service audited appellee's tax returns and assessed a one hundred (100%) per cent tax liability upon her for all support payments received from appellant. Appellee then presented a petition to have the support order allocated one-half to her and one-half to the daughter, effective July, 1968. This appeal followed the lower court's order allocating the support payments. Both parties interpret the order as being retroactive to July, 1968.
That a petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the first order is established by a long line of authorities. Commonwealth ex rel. Kreiner v. Scheidt, 183 Pa. Super. 277, 131 A.2d 147 (1957); Commonwealth ex rel. Long v. Long, 181 Pa. Super. 41, 121 A.2d 888 (1956). The first order, in the absence of an appeal, is subject to modification only
[ 245 Pa. Super. Page 97]
when the circumstances have materially and substantially changed, with the burden on the party seeking modification to show such a change in circumstances. Commonwealth ex rel. Schmitz v. Schmitz, 237 Pa. Super. 519, 352 A.2d 103 (1975); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974); Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa. Super. 270, 184 A.2d 288 (1962). In proceedings of this nature, we are hesitant to interfere with the determinations of the court below and will not reverse unless there has been a clear abuse of discretion. Commonwealth ex rel. Schmitz v. Schmitz, supra.
We have repeatedly held that the effect of income taxes upon the parties is a proper matter for consideration in determining the amount of a support order. Hecht v. Hecht, 189 Pa. Super. 276, 150 A.2d 139 (1959). The federal income tax laws and regulations affect awards to the wife and children, and tax returns can be filed in various ways to take advantage of them. Commonwealth ex rel. Stanley v. Stanley, 198 Pa. Super. 15, 179 A.2d 667 (1962). We do not attempt here to construe the Internal Revenue Code, nor do we wish to convert our state courts into courts for the adjustment of federal taxes. However, it appears from a cursory examination of the Internal Revenue Code that deductibility to the payer is generally defined in terms of includibility of the amounts in the gross income of the recipient. The portion of an award that is specifically allocated to child support ...