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SHERYL B. BANKS v. DAVID BANKS (02/01/80)

filed: February 1, 1980.

SHERYL B. BANKS, APPELLANT,
v.
DAVID BANKS



No. 440 October Term 1979, Appeal from Order of the Court of Common Pleas of Philadelphia County, Family Court Division, Domestic Relations Branch, D.R. No. 76-04113.

COUNSEL

Warren L. Soffian, Philadelphia, for appellant.

Samuel Brenner, Philadelphia, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 275 Pa. Super. Page 442]

This is an appeal by the mother from an order reducing the father's support obligation for the parties' minor daughter.

On April 13, 1977, the father, David Banks, was ordered to pay $125 a week, plus Blue Cross and Blue Shield, to support the parties' daughter, Amy, who was born in March 1969.

[ 275 Pa. Super. Page 443]

The order was entered by stipulation and was based on the father's then estimated annual income of $15,000. In October 1977, the father decided on his own to reduce his payment to $75 a week, and to stop paying Blue Cross and Blue Shield. On November 15, 1977, the father and mother, Sheryl Banks, were divorced. On December 6, 1977, the father filed a petition to reduce support, and on January 27, 1978, the mother filed a petition to increase support. On February 5, 1979, following a hearing, the lower court granted the father's petition, and reduced support from $125 plus Blue Cross and Blue Shield to $75 a week, and denied the mother's petition to increase support.*fn1

1

The mother first argues that "as a matter of law" the lower court should not have heard the father's petition to reduce support because on December 13, 1978, when the petition was heard, the father was in arrears on the payments required by the support order of April 13, 1977, apparently in an amount in excess of $3000.*fn2

It is true that where a party flagrantly disobeys a support order, his petition to reduce may be denied. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964); Beemer v. Beemer, 200 Pa. Super. 103, 107-108, 188 A.2d 475, 477 (1962). As stated in Goodwin (quoting the lower court's opinion there):

"If a party does 'not deem it appropriate' to obey the Orders of the Court, the Court should not deem it appropriate to grant such party relief it seeks."

413 Pa. at 554-55, 198 A.2d at 504.

[ 275 Pa. Super. Page 444]

However, the issue is not, as the mother argues, "a matter of law" but rather a question of fact, i. e., in fact, was the party in question guilty of flagrant disobedience?

Here, whether the father's act of reducing support payments from $125 to $75 a week constituted flagrant disobedience was at least initially for the lower court to decide. Where the lower court does not make a determination that a party is in contempt for being in arrears,*fn3 we have hesitated to find contempt on appeal. Commonwealth ex rel. Hall v. Hall, 243 Pa. Super. 162, 364 A.2d 500, remanded, 259 Pa. Super. 214, 216, 393 A.2d 794, 795 (1978). The mere existence of arrearages does not preclude a hearing on a petition to reduce. Commonwealth ex rel. Fusco v. Fusco, 247 Pa. Super. 413, 372 A.2d 893 (1977). In Fusco, the lower court refused to grant a hearing because the petitioner was in arrears. We reversed and remanded for hearing, since so far as we could tell from the record, the petitioner had made a good faith effort to comply with the original support order, nevertheless falling in arrears because of his "precarious financial situation." 247 Pa. Super. at 417, 372 A.2d at 895. And see Rickert v. Rickert, 223 Pa. Super. 1, 4, 296 A.2d 841, 842 (1972).

Implicit in the lower court's decision granting the father's petition to reduce is a finding that the father had made a good faith effort to comply with the original order. Thus the court said in the memorandum accompanying its order that the father had suffered a "steady decline in annual earnings from approximately $17,000 in 1977 to approximately $10,000 in 1978 . . . ." Also, the father did make the payments as originally ordered from April 13, 1977, until October 1977. On such a record we are unwilling to hold that the lower court should have found the father guilty of flagrant disobedience and have refused to hear his petition to reduce support.

[ 275 Pa. Super. Page 4452]

The mother next argues that the lower court abused its discretion in granting the father's petition to reduce support.

As a general proposition, it may be said that the role of an appellate court in support proceedings is narrowly circumscribed; absent a clear abuse of discretion, it will defer to the order of the lower court. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Super. 301, 303, 310 A.2d 672, 673 (1973); Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976). This circumscribed role exists because the appellate court must base its decision on a printed record, whereas the hearing judge has seen and heard the witnesses, and so has the better opportunity to evaluate the issues on their merits. Commonwealth ex rel. Friedman v. Friedman, 223 Pa. Super. 66, 67, 297 A.2d 158, 159 (allocatur refused 223 Pa. Super. xxxv) (1972). These considerations, however, do not imply that the appellate court is to accept without question the findings and conclusions of the lower court. To the contrary, the appellate court should ensure that the lower court follows proper procedures, and applies the relevant legal principles. Weiser v. Weiser, supra, 238 Pa. Super. at 498, 362 A.2d at 291 (concurring and dissenting opinion), citing Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1933). In addition, the appellate court should scrutinize the record to ascertain whether the record supports the reasoning of the lower court; ...


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