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COMMONWEALTH PENNSYLVANIA EX REL. DOROTHY I. DELBAUGH v. JACK C. DELBAUGH (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. DOROTHY I. DELBAUGH,
v.
JACK C. DELBAUGH, APPELLEE. APPEAL OF DOROTHY I. DELBAUGH



Appeal from the Order of the Berks County Court of Common Pleas - Criminal Division, The Honorable James W. Bertolet, R.L.J., Dated January 25, 1977, No. 255 September Term, 1961.

COUNSEL

John A. Boccabella, Reading, for appellant.

Clarence C. Mendelsohn, Reading, for appellee.

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

Author: Jacobs

[ 258 Pa. Super. Page 129]

This is an appeal from an order of the Court of Common Pleas of Berks County denying a petition for an increase in support payments. The sole issue before us is whether the trial court abused its discretion in denying the petition. We hold that the court did abuse its discretion and we reverse and remand this case for proceedings consistent with this opinion.

Dorothy I. Delbaugh and Jack C. Delbaugh have been separated for a number of years, but no decree of divorce or annulment has been granted to either. There is no question as to appellee's liability to support Mrs. Delbaugh, the only issue being as to the amount of that support.

On November 6, 1970, the last prior modification of the original support order was made. At that time, Mrs. Delbaugh was employed as a clerk at J. C. Penney's and had a net salary of $58 per week, N.T. 1; appellee's 1970 weekly net pay is not of record. The court ordered appellee to pay Mrs. Delbaugh $30 per week as support and $10 per week on then-existing arrearages.

When Mrs. Delbaugh filed the petition for increase before us now, she was earning $67.15 net weekly, lower court opinion at 1; she also received approximately $400 per year from a trust fund established for her by her late mother, N.T. 11. Her monthly expenses were approximately $500, N.T. 8-9, an increase over her monthly expenses of 1970, N.T. 9.*fn1 Appellee's net earnings at the time this petition was filed were approximately $249 per week, lower court opinion at 1; from this amount he paid approximately $40 per week automobile expenses and $20 per week entertainment

[ 258 Pa. Super. Page 130]

    expenses in conjunction with his job as a traveling salesman. He gave his monthly expenses as $1,108. N.T. 28.

At the conclusion of the testimony, the trial court entered an order denying the petition for increase. The court clearly indicated, however, that a weekly support payment of $40 was appropriate: "I'm considering he's paying 40, and it shouldn't drop any more than that, . . . ." N.T. 31. It is also clear that the court considered appellee's arrearage payments to constitute an increase in Mrs. Delbaugh's support payments: "In effect, by his getting in arrears, there has been an increase, and that's all right." N.T. 31. Finally, the court indicated that a support award of $30 was inadequate and that when the arrearages were fully paid,*fn2 he would reconsider a petition for increase so Mrs. Delbaugh's support payments did not revert to $30 per week. N.T. 31.

A support order may be modified upon proof that circumstances have changed materially since the entry of the order. Commonwealth ex rel. Lyle v. Lyle, 248 Pa. Super. 458, 461, 375 A.2d 187, 189 (1977); Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa. Super. 163, 165, 280 A.2d 456, 457 (1971), allocatur refused, 219 Pa. Super. xxxvi (1971). The party moving for modification of the order bears the burden of proving, by competent evidence, the existence of material and substantial changes in circumstances. Commonwealth ex rel. Hall v. Hall, 243 Pa. Super. 162, 165, 364 A.2d 500, 502 (1976); Commonwealth ex rel. Schmitz v. Schmitz, 237 Pa. Super. 519, 521, 352 A.2d 103, 104 (1975). When reviewing a petition for modification of a ...


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