No. 783 October Term, 1978, Appeal from Order of the Court of Common Pleas of Columbia County, Criminal Division (Support), at No. 709, 1977.
Hervey B. Smith, Bloomsburg, for appellant.
Linda M. Gunn, Harrisburg, for Commonwealth, appellee.
Cercone, Spaeth and Lipez, JJ.
[ 277 Pa. Super. Page 350]
Appellant takes this appeal from the order of the lower court entered on January 11, 1978, directing appellant to pay $160.00 per month towards the support of two of his minor children, Wendy and Todd Cragle, both of whom are in the custody of appellant's ex-wife Bonnie Cragle (now Bonnie Dennis). Appellant argues that the lower court abused its discretion in setting the amount of the child support at $160.00 per month because appellant says that such an order is confiscatory under the circumstances of the instant case. We agree with appellant and hereby reverse and remand for rehearing by the lower court.
[ 277 Pa. Super. Page 351]
Bonnie and Leonard Cragle are the parents of three minor children-Matthew, Wendy and Todd.*fn1 The Cragles separated in the beginning of 1975, with Leonard, the father, retaining the custody of all three children. Bonnie, the mother, filed actions for divorce and for custody of the children, both of which actions Leonard contested. Bonnie's request for divorce was denied by the lower court and on October 13, 1976, that same court awarded custody of the three children to Leonard. While she was married to Leonard and for approximately a year after the separation, Bonnie was employed as a nurse's aid, making a salary of approximately $400.00 per month. At the conclusion of the custody case, Leonard instituted a support action against Bonnie asking that she be required to contribute to the children's support. However, before a hearing could be held on that support action, Bonnie left her employment in December of 1976 so that she might attend nursing school. Because she was no longer working, Bonnie was eligible for public assistance which she began collecting in the sum of $164.00 per month from the Department of Public Assistance. Bonnie's unemployment effectively defeated Leonard's support action which apparently was never heard by the court. The situation of the two parties remained unchanged for almost two and one-half years, with Leonard providing the sole support of all three children, until August of 1977 when, by mutual agreement, Bonnie was given custody of Wendy and Todd. Matthew remained with Leonard. When she obtained custody of the two children, Bonnie was still receiving $164.00 per month in welfare payments for herself, and the Department allowed her additional assistance for the two children residing with her, paying Bonnie an additional $247.00 per month towards the support of the two children.
Subsequently, on November 10, 1977 Bonnie and Leonard were divorced. The Department continued to pay support for Bonnie and the two children until December of 1977, when Bonnie remarried and her welfare payments ceased,
[ 277 Pa. Super. Page 352]
though payments for the two children continued. As required by statute, the Department instituted the present action on Bonnie's behalf seeking to require Leonard to contribute to the support of Wendy and Todd, and as previously indicated, the lower court ruled that Leonard must pay $160.00 per month in support payments for these two children.
Appellant contends*fn2 that under the facts of the instant case, the lower court abused its discretion in setting the amount of the child support order at $160.00 per month when appellant's take home pay is only $600.00 per month, and appellant's expenses amount to approximately $520.00 per month. We agree with appellant.
In general, the amount of a child support order is largely within the discretion of the trial judge, whose judgment will not be disturbed on appeal absent a clear abuse of discretion. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Commonwealth ex rel. Berry v. Berry, 253 Pa. Super. 268, 384 A.2d 1337 (1978). A child support order must be fair, not confiscatory, and must be consistent with the parent's station in life and customary standard of living, making due ...