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COMMONWEALTH EX REL. ELLEN MAINZER v. JOHN AUDI (05/18/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: May 18, 1979.

COMMONWEALTH EX REL. ELLEN MAINZER, APPELLANT,
v.
JOHN AUDI

No. 2134 October Term, 1978, Appeal From the Order of the Court of Common Pleas, Domestic Relations Division, of Luzerne County at No. 396 September Term, 1963.

COUNSEL

Charles R. Pedri, Hazleton, for appellant.

Basil G. Russin, Wilkes-Barre, for appellee.

Cercone, President Judge and Watkins and Hoffman, JJ.

Author: Hoffman

[ 266 Pa. Super. Page 123]

On July 10, 1978, the lower court increased appellee-father's support obligations for the parties' two teenage children from $35 per week to $50 per week; the court further ordered the father to pay an additional $20 per week until $210 in arrearages were paid.*fn1 Appellant, the mother and custodial parent, contends that the lower court erred in (1) allowing testimony concerning the earnings of her second husband, (2) not increasing child support by an adequate amount, and (3) requiring her to seek employment. We find

[ 266 Pa. Super. Page 124]

    these contentions meritless and, accordingly, affirm the order of the court below.

Over objection, appellant-mother testified that her present husband earned $40,000 gross income and paid for all of the expenses of her household.*fn2 Members of her household include the two children of her first marriage with appellee and a third child by her present husband. Both mothers and fathers are obligated to contribute to the support of their children in accordance with their respective abilities to pay. Costello v. Le Noir, 462 Pa. 36, 337 A.2d 866 (1975); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). In fact, it is error to order one parent to pay child support without considering the other parent's ability to pay. See Kaper v. Kaper, 227 Pa. Super. 377, 323 A.2d 222 (1974). Although appellant's present husband has no duty to support the children of appellant's first marriage and his separate assets and earnings may not be considered part of appellant's financial resources the court could properly consider the new husband's voluntary contributions to the family budget in computing appellant-mother's "ability to pay." See Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa. Super. 435, 326 A.2d 883 (1974). Accordingly, the lower court did not err in allowing the testimony. Moreover, the lower court in its opinion concluded that the increased amount of support "is all the defendant [appellee-father] can pay." It is clear from this statement that testimony concerning the earnings of appellant's present husband did not have the effect of lessening the increase in appellee-father's support obligations.

The lower court based its increase in the amount of support which appellee-father must pay upon findings of the parties' ability to pay and the children's needs. In particular, it determined that $50 per week was the maximum appellee-father could pay, given his income, assets, earning

[ 266 Pa. Super. Page 125]

    capacity, and expenses, all of which are supported by the record and undisputed on appeal.*fn3 We will not disturb a lower court's support order absent a manifest abuse of discretion. See Commonwealth ex rel. Levy v. Levy, 240 Pa. Super. 168, 361 A.2d 781 (1976). We conclude from our review of the record that such abuse is not present here. Accordingly, we find appellant's contention that the lower court did not adequately increase appellee-father's support obligations to be without merit.

Appellant's third contention lacks merit because nowhere in either the order or the opinion in support thereof did the lower court require appellant-mother to seek employment.

Order of the court below affirmed.


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