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MARJORIE B. MACHEN v. DONALD E. MACHEN (04/25/80)

filed: April 25, 1980.

MARJORIE B. MACHEN, APPELLANT,
v.
DONALD E. MACHEN



No. 1338 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division at No. 287 of 1978.

COUNSEL

Geoffrey P. Wozman, Pittsburgh, for appellant.

David J. Greenberg, Pittsburgh, for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 278 Pa. Super. Page 137]

This is a support case. On February 7 and 8, 1978, appellant Marjorie B. Machen filed a complaint for support against her husband, appellee Donald E. Machen. The complaint was subsequently withdrawn incident to an attempted reconciliation between the parties. Upon their failure to reconcile, the parties separated in May 1978, the wife returning to live with her parents, and on June 5, 1978, the wife filed an amended complaint for support. (There have been no children born of this marriage.) A support hearing was held on August 23, 1978, resulting in an order for the wife in the amount of $600 per month. As appellant, the wife argues that this amount is manifestly unreasonable and inadequate, and that in fixing it, the lower court abused its discretion.

In support proceedings, an appellate court will defer to the lower court, absent a showing of a clear abuse of discretion. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976) (SPAETH, J. concurring and dissenting opinion). In order to determine whether an abuse of discretion has occurred, we consider whether the lower court has misapplied or overridden existing law, made a manifestly unreasonable judgment, or ruled with partiality, prejudice, bias or ill will. Straub v. Tyahla, 274 Pa. Super. 411, 418 A.2d 472 (1980) (child support) quoting Commonwealth ex rel. Levy v. Levy, 240 Pa. Super. 168, 177, 361 A.2d 781, 785 (1976). Among the principles of existing law that the lower court must apply is the principle that in determining a spouse's support obligation, the factors to be considered are income, potential earning capacity, and other property and financial resources. Straub v. Tyahla, supra; Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa. Super. 103, 380 A.2d 398 (1977).

The evidence of the husband's income was as follows: In 1976, his gross receipts from his first year of dental practice were reported on his income tax return as $66,872. His net

[ 278 Pa. Super. Page 138]

    profit was only $2,342, due to substantial deductions and business expenses. (R. 28a) In 1977 his gross receipts from practice were reported as $159,633. His net profit for this year was $66,296. Among the business expenses declared for this year were $9,270 in travel, promotion and entertainment, $10,527 for depreciation of office equipment (R. 51a), and $6,000 for depreciation of rental property (R. 59a). For the first three months of 1978, his gross receipts from practice were estimated at $91,000, and his expenses at $53,000. (R. 27a)

In determining a party's potential earning capacity, the evidence of income as reported by the party to the federal government is not conclusive.

[T]he federal government's decision not to tax particular items does not control the calculation of earning power as one of the elements in determining a support order.

Commonwealth ex rel. ReDavid v. ReDavid, supra, 251 Pa. Super. at 106, 380 A.2d at 399, citing Commonwealth ex rel. Rankin v. Rankin, 170 Pa. Super. 570, 87 A.2d 799 (1952). An item not considered income for tax purposes may nevertheless properly be considered in determining a party's support obligation. Commonwealth v. Turnblacer, 183 Pa. Super. 41, 44, 128 ...


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