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COMMONWEALTH PENNSYLVANIA EX REL. WISTAR L. CANN v. CHARLES M. CANN (01/11/80)

filed: January 11, 1980.

COMMONWEALTH OF PENNSYLVANIA EX REL. WISTAR L. CANN
v.
CHARLES M. CANN, APPELLANT



No. 1339 October Term, 1978, Appeal from the Order Entered April 4, 1978 in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division at No. F-11-115 December Term, 1965

COUNSEL

Edward A. Savastio, Upper Darby, for appellant.

Elizabeth M. Mayer, Media, for appellee.

Spaeth, Stranahan and Sugerman,*fn* JJ.

Author: Stranahan

[ 274 Pa. Super. Page 276]

This is an appeal by defendant father, Charles M. Cann, from the refusal of the court below to vacate an order of December, 1975 directing the defendant to pay $65.00 semimonthly for the support of his daughter.

In August 1977 the defendant filed a petition in the Delaware County Court of Common Pleas seeking to vacate an earlier support order entered against him. This petition claimed that his daughter, Lila Cann, had completed her education, was employed and fully emancipated.

An Answer and New Matter was filed on behalf of the plaintiff, Wistar Cann Mains, and Lila Cann. Plaintiff admitted that Lila Cann had completed her schooling but alleged that she suffers from a learning disability and as a

[ 274 Pa. Super. Page 277]

    result of this she is unable to gain employment whereby she would be self-supporting. Plaintiff also denied that Lila Cann was fully emancipated.

A hearing regarding this petition was held January 19, 1978. At that time the only witness called was Lila Cann, who was called as on cross examination by the defendant and was also examined by counsel for the plaintiff. Additionally, counsel for plaintiff introduced a list of expenses prepared by Lila Cann. At the hearing it was established that Lila Cann was 19 years of age and was living apart from her mother in an apartment rented from her grandfather. The testimony also revealed that she had a job cleaning house and baby-sitting. She worked 40 hours per week at these jobs.

Judge Reed entered an order April 4, 1978 denying defendant's petition to vacate the order of support for Lila Cann and continuing the existing order. This order was based on Judge Reed's finding that Lila Cann was unable to fully support herself because of an acknowledged mental deficiency. It is from the April 4 order that defendant appeals.

In reviewing an order entered in a support proceeding, an appellate court has a limited scope of review. The trial court possesses wide discretion as to the proper amount of child support and a reviewing court will not interfere with the determination of the court below unless there has been a clear abuse of discretion. Commonwealth ex rel. Berry v. Berry, 253 Pa. Super. 268, 384 A.2d 1337 (1978). The function of the appellate court is to determine whether there is sufficient ...


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