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COMMONWEALTH PENNSYLVANIA EX REL. ROSEMARY CHAPMAN BERRY v. WILLIAM EMORY BERRY (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. ROSEMARY CHAPMAN BERRY, APPELLANT,
v.
WILLIAM EMORY BERRY



COUNSEL

Mary Bell Hammerman, Philadelphia, for appellant.

Richard A. McDaniel, Philadelphia, for appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 253 Pa. Super. Page 270]

This case involves an appeal by appellant-wife in an action brought by appellee-husband to vacate support payments as to appellant and to ascertain his support responsibility with respect to his son. In this action the Court of Common Pleas on January 8, 1976 vacated a previous support order as it applied to appellant and directed appellee to continue making child support payments in the amount of $37.50 per week plus $10 per week for arrearages.

The payments of the foregoing amounts were ordered for the support of a ten-year old child born to the litigating parties during the course of their nine-year marriage which was terminated by a divorce decree on June 3, 1975. Previous to the divorce and the support order now being appealed, the Court of Common Pleas on March 17, 1970 had ordered appellee to make support payments for both his wife and child in the amount of $65 per week. It is appellee's

[ 253 Pa. Super. Page 271]

    contention on appeal that the lower court abused its discretion in reducing support payments to the sum of $37.50 per week, which sum is to be used solely for the maintenance of the son.

The reasonableness of the lower court's support order hinges upon the comparative ability of the litigants to contribute their respective shares to the maintenance of their child. Mr. Berry earns a net weekly salary of $243 and claims expenses in the amount of approximately $232 a week. Included in these expenses are sundry living expenses*fn1 and several charge account payments and loans. Mrs. Berry, on the other hand, earns a net weekly salary of $134.44 and claims expenses for the child alone in the amount of $121.50 per week. Additionally, appellant claims expenses in the form of monthly mortgage payments and various household related expenditures.

Appellant contends that in view of her financial resources as compared to her ex-husband, the lower court's support judgment is grossly inadequate. Before directly considering this contention, it must be emphasized at the outset of this opinion that the trial court possesses wide discretion as to the proper amount of child support payments and, unless surrounding circumstances suggest that the lower court has abused its discretion, its judgment must be upheld. Com. ex rel. Friedman v. Friedman, 223 Pa. Super. 66, 297 A.2d 158 (1972); Commonwealth v. Thompson, 220 Pa. Super. 400, 289 A.2d 183 (1972).

Proceeding from this general proposition concerning the scope of review of this court with respect to the issue at hand, attention can be focused upon the question of whether the lower court complied with existing law in making the support order here being challenged. Although there is no express limitation on the amount of a support order which may be imposed against a father for support of his child or children, Comm. ex rel. Warner v. Warner, 198 Pa. Super. 124,

[ 253 Pa. Super. Page 272181]

A.2d 188 (1962), a support order must be fair and not confiscatory. What is fair in a given case, of course, depends on the property, income and earning capacity of both parties. Comm. ex rel. Bassion v. Bassion, 199 Pa. Super. 541, 185 A.2d 822 (1962). It is these factors ...


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