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HARRY STRAUB v. BARBARA H. TYAHLA (01/18/80)

filed: January 18, 1980.

HARRY STRAUB
v.
BARBARA H. TYAHLA, APPELLANT



No. 2464 October Term, 1978, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Division, No. 2196-78.

COUNSEL

Jack A. Rounick, Norristown, for appellant.

Anthony J. Scirica, Norristown, for appellee.

Hester, Hoffman and Catania,*fn* JJ.

Author: Hester

[ 274 Pa. Super. Page 413]

Before the court is appellant-non-custodial mother's appeal from an order of the lower court dated September 19, 1978, requiring appellant to pay the sum of $35 per week towards the support of her two minor children.

We reverse.

Initially, it is appropriate to observe that the trial court possesses wide discretion as to the proper amount of support payments and, unless surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed. Commonwealth ex rel. Berry v. Berry, 253 Pa. Super. 268, 384 A.2d 1337 (1978); Weiser v. Weiser, 238 Pa. Super. 488,

[ 274 Pa. Super. Page 414362]

A.2d 287 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa. Super. 605, 346 A.2d 822 (1975).

Our scope of review is limited to a determination as to whether the order of support can be sustained on any valid ground. Marvin v. Marvin, 193 Pa. Super. 179, 164 A.2d 128 (1960). We must determine whether there was sufficient evidence to sustain the lower court or contrariwise whether the lower court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence. Com. ex rel. McQuiddy v. McQuiddy, 238 Pa. Super. 390, 358 A.2d 102 (1976); Com. ex rel. Caplan v. Caplan, 236 Pa. Super. 605, 346 A.2d 822 (1975); Com. ex rel. Halderman v. Halderman, 230 Pa. Super. 125, 326 A.2d 908 (1974).

In reviewing the lower court's action to determine whether an abuse of discretion has occurred, we recognize that "[a]n abuse of discretion is merely an error of judgment, but if in reaching a conclusion the law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused." Com. ex rel. Levy v. Levy, 240 Pa. Super. 168, 174, 361 A.2d 781, 785 (1976).

In evaluating a spouse's support obligation, the factors to be considered are the spouse's income, potential earning power, and the extent of his property and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa. Super. 103, 380 A.2d 398 (1977); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974). The amount of the award must be fair, non-confiscatory, and attendant to the circumstances of the parties. Commonwealth ex rel. Malizia v. Malizia, 229 Pa. Super. 108, 324 A.2d 386 (1974); Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Super. 301, 310 A.2d 672 (1973).

The salient facts of the instant matter can be summarized as follows:

[ 274 Pa. Super. Page 415]

Appellant-mother and appellee-father are the divorced parents of two minor children, Donald and Harry. Since August of 1976 when the parties separated, the minor children have resided with their father pursuant to the terms of a Separation Agreement that the father have custody of the children. Appellee-father is unmarried; appellant-mother is remarried.

Appellant worked as a claims adjuster beginning in August of 1976 with Prudential Insurance Company where she earned a net weekly income of approximately $150 which she continued to earn until resigning her position in June of 1978. Since that time, she has remained unemployed.

Appellee-father has been employed with the General Electric Company as an engineer earning $30,800 per year. His weekly earnings after taxes are approximately $427. In addition to his current earnings, appellee maintained a total savings package of approximately $25,000.00 as well as substantial equity in his now individually owned residence.

Appellant's present husband is also employed by the General Electric Company with gross weekly earnings of $494 and net disposable weekly income of $260. The disparity between gross and net was not fully explained other than noting a $49 savings account deduction.

Attributing 50% of total allowable expenses (excluding those items specifically attributable to the appellee alone), the court found that the needs of the two ...


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