No. 2132 October Term, 1976, Appeal from the Order of the Court of Common Pleas of Delaware County, entered on June 11, 1976, revising an earlier support order of March Term, 1970, No. F-16-143.
John M. McAllister, Philadelphia, for appellant.
Ronald J. Klimas, Media, for appellee.
Watkins, Presiding Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Jacobs and Price, JJ., dissent.
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Appellant contends that the lower court erroneously reduced its support award because the court (1) placed undue emphasis upon appellee's net income as reflected in his 1975 federal income tax return, and (2) incorrectly calculated
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appellee's support obligation by failing to consider one element of that obligation, the market value or net worth of appellee's real estate holdings. We agree and, therefore, reverse and remand.
Appellant and appellee were separated on April 14, 1969. Subsequently, appellant filed a complaint in divorce against appellee. The Court of Common Pleas of Delaware County entered a support order on May 18, 1970, directing appellee to pay appellant $225.00 per week for her support and $75.00 per week for the support of their two children. In addition, the court ordered appellee to pay the costs of the mortgage, insurance, taxes, and repairs on the family home in which appellant resided with their two children. Subsequently, appellant petitioned for an increase in support; appellee responded with a petition to reduce support. On June 11, 1976, the lower court ordered a reduction in support and directed appellee to pay appellant $75.00 per week for the support of one child residing with her*fn1 and $125.00 per week for appellant's support. The revised order did not include the costs of the mortgage, insurance, taxes, and repairs. On July 12, 1976, appellant filed an appeal to this Court contesting the support order of June 11, 1976. Appellee filed a cross-appeal.*fn2
Appellant contends that the lower court erred in reducing the original support order by failing to consider appellee's earning capacity for the years 1970 to 1975 and by relying too heavily on appellee's reduced net income as reflected in his federal income tax return for 1975. Our courts have long recognized that a support order must be fair, non-confiscatory, and based on all the circumstances of the parties existing at the time of the order. Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa. Super. 26, 344 A.2d
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(1975); Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Super. 301, 310 A.2d 672 (1973); Hecht v. Hecht, 189 Pa. Super. 276, 150 A.2d 139 (1959). Although a court may modify a support order if the financial circumstances of the parties change, the party seeking the modification has the burden of demonstrating a material and substantial change in circumstances. Bell v. Bell, 228 Pa. Super. 280, 323 A.2d 267 (1974); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974). However, when reviewing an original or modified support order, our appellate courts will not reverse a lower court's order absent a clear abuse of discretion. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976).
In evaluating a spouse's support obligation, the factors to consider are the spouse's income, potential earning power, and the nature and extent of his property and financial resources. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974); Shaffer v. Shaffer, 175 Pa. Super. 100, 103 A.2d 430 (1954). Moreover, our courts have concluded that the federal government's decision not to tax particular items does not control the calculation of earning power as one of the elements in determining a support order. Commonwealth ex rel. Rankin v. Rankin, 170 Pa. Super. 570, 87 A.2d 799 (1952). Thus, "depreciation is not to be considered in determining the income from which the wife may seek support." Commonwealth v. Turnblacer, 183 Pa. Super. 41, 44, 128 A.2d 177, 179 (1956). See also Commonwealth ex rel. Rankin v. Rankin, supra. Finally, in evaluating a spouse's property and financial resources as one element in determining a support obligation, we recognize that the court must make a thorough appraisal of the spouse's stock ...