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COMMONWEALTH PENNSYLVANIA EX REL. RENEE LITTMAN v. LESLIE R. LITTMAN (11/03/78)

decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. RENEE LITTMAN, APPELLANT,
v.
LESLIE R. LITTMAN



NO. 873 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas of Montgomery County, at No. 534 October Term, 1973.

COUNSEL

Arthur Lefkoe, Norristown, for appellant.

Jon C. Sirlin, Philadelphia, with him Joseph H. Weiss, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Spaeth, J., files a dissenting opinion. Watkins, Former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 260 Pa. Super. Page 100]

The appellant in this case, Renee Littman, filed a petition in the lower court seeking an increase in a support order entered against her former husband, the appellee, Leslie R. Littman, for the support of their three minor children. The parties were divorced in August 1972, and by Order dated January 8, 1974, the appellee's support obligation was set at $150 per week for the support of the children. After hearing, the lower court granted the petition, modifying the support order to require appellee to increase his payments to $180 per week, as well as to pay the cost of nursery school expenses for the youngest child. The appellant feels that the increase is not sufficient and has appealed.

This Court will not normally reverse in matters of support unless there is an abuse of discretion on the part of the lower court. Commonwealth ex rel. Schmitz v. Schmitz, 237 Pa. Super. 519, 352 A.2d 103 (1975). An amount which a party is ordered to pay by the lower court will therefore not be altered by the Superior Court unless it is grossly inadequate or excessive. Commonwealth ex rel. Kallen v. Kallen, 200 Pa. Super. 507, 190 A.2d 175 (1963). We can discern no such abuse of discretion or grossly improper award in the instant case.

In a support case such as this, a petitioner has the burden of showing a "change in circumstances" in order to obtain a modification of an existing support order. Commonwealth ex rel. Luongo v. Tillye, 229 Pa. Super. 453, 323 A.2d 172 (1974). In the instant case, the Petitioner testified that the present needs of the children amount to $245 per week. This total included several items which we believe the lower court properly questioned or disallowed.

The petitioner estimated clothing requirements for her children at a cost of $30.77 per week. Second, petitioner included costs of summer camp at an average of $10.58 per week. Third, the petitioner stated medical and dental costs to be $6.34 per week. The records showed that the respondent has been supplying clothing to the children, directly, at

[ 260 Pa. Super. Page 101]

    the rate of $1,500 per year. He has also paid all of the fees relating to summer camp and has his children covered under medical cost reimbursement plans provided through his employment. Thus, all of these items claimed by the petitioner as support costs were proven to be paid already by the respondent.

The lower court further questioned two items included by petitioner in her budget of support costs. She estimated the cost of laundry as $11.20 per week. This was apparently computed on the basis of two loads of laundry each day, at a cost of $.80 per load. The lower court found this estimate to be excessive, and we find no abuse of discretion in that conclusion. Next, the petitioner claimed a cost of $15.00 per week for babysitters. The lower court, noting that the petitioner is not employed outside of the home, and further noting that the children are all in school, concluded that it had received no satisfactory explanation for that requirement. Moreover, we find it to be noteworthy that the petitioner claimed earnings of only $5.00 per week, despite past training and employment as a secretary. In this regard, the lower court concluded that it would not be unfair to conclude that the petitioner had an earning capacity of at least $100 per week. In all of these circumstances, and in light of the petitioner's obligation to contribute to the support of the children (Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975)), we again find no abuse of discretion by the lower court in its findings with regard to the baby-sitter costs claimed.

While the petitioner places heavy reliance upon her former husband's increase in net income, and his earning capacity due to his employment by a family-owned corporation which he allegedly controls, we find such factors to be irrelevant in the present contexts. The petitioner sought an increase in support and testified that the present needs of the children amount to $245 per week. The reductions discussed above, made by the lower court in the exercise of sound discretion, yielded a balance in support requirements of approximately $180 per week. This was the amount of

[ 260 Pa. Super. Page 102]

    the support which the court required the respondent to pay. We find no error in the Order.

Affirmed.

SPAETH, Judge, ...


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