NO. 578 APRIL TERM, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, at No. 1137 of 1976
Gordon David Fisher, Pittsburgh, with him Kaufman & Harris, Pittsburgh, for appellant.
Harry J. Gruener, Pittsburgh, with him Litman, Litman, Harris & Specter, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting statement, in which Jacobs, President Judge, joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 449]
This is an appeal from a final order of the Family Division of the Court of Common Pleas of Allegheny County dismissing appellant's complaint against appellee for the support of their minor son, now 15 years of age.
The parties were married in June, 1962, and had one child, Todd Allen, born August 25, 1963. They were divorced in July, 1965, at which time they executed a separation agreement providing, inter alia, for the custody of the son by the mother (appellant) and payments of $125 a month by the father (appellee) for the support of the son. Under the
[ 260 Pa. Super. Page 450]
terms of a later custody order the son spends two summer months and frequent weekends with the father.
Both parties have remarried. Appellant and her husband, a physician, are the parents of an 8 year old daughter who resides with them. Appellee is a dentist with an office and an active practice in South Hills Village in Upper St. Clair Township. He and his wife have no children of their own but a minor daughter of the wife's by a prior marriage resides with them. The child's natural father pays $150 a month for the support of this child.
When the parties executed the 1965 agreement appellee was just out of dental school and earning approximately $125 a week as a dentist. He has continued in that profession and over the years his earnings have increased to a gross income of $44,000 in 1975 and a net income for that year of about $19,200, or about $1,600 a month.
With the exception hereinafter noted, appellee has paid appellant $125 a month for the support of their son since July, 1965, except during the two summer months each year which the son spends with his father. The son attended St. Edmond's Academy from the first through the seventh grades and, at the time of the support hearing, was enrolled in Shadyside Academy. For three of the years at St. Edmond's Academy the appellee paid the annual tuition of approximately $1,100 in lieu of monthly support payments, this by agreement of the parties.
In addition, the appellee has made substantial expenditures directly to or for the benefit of his son on a voluntary but irregular basis. Most commonly these expenditures have been for clothing or numerous items of sporting and recreational equipment, usually purchased when the son and father were together and without consultation with appellant. The father estimates that these supplemental expenditures for his son may have averaged $125 a month; but ...