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ETHEL BERRY v. WILLIAM BERRY (05/23/80)

filed: May 23, 1980.

ETHEL BERRY
v.
WILLIAM BERRY, APPELLANT



No. 383 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Beaver County, Domestic Relations Division, at No. 281 D R. of 1972.

COUNSEL

Daniel L. Haller, Aliquippa, for appellant.

Jean E. Graybill, Assistant Attorney General, Harrisburg, submitted a brief on behalf of appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 278 Pa. Super. Page 32]

Appellant, William Berry, appeals from the order of the court below which denied his request for modification of a child support order. We vacate the order of the lower court and remand for further proceedings.

Pursuant to an order of September 6, 1973, appellant was required to pay $15.00 per month for the support of his wife, Ethel Berry, and $15.00 per month for the support of each of their two minor children. In 1976, appellant filed his first petition to decrease the amount of the support order alleging that his wife was working. A hearing was scheduled on the petition but "Ethel apparently did not attend," according to the opinion of the lower court. The petition was dismissed based on the hearing officer's statement that "it is apparent [that Ethel] is not working." Appellant petitioned a second time for a reduction in the support order in 1978. This time, two domestic relations hearings were scheduled at which William appeared and Ethel did not. The domestic relations officer then submitted three recommendations to the court which included: 1) that William continued to pay

[ 278 Pa. Super. Page 33]

$15.00 per month for each of his two minor children; 2) that Ethel be removed from the order due to a divorce decree entered in 1978; and 3) that William pay the sum of $35.00 per month toward the liquidation of over $2,000.00 in arrearages that existed under the 1973 order. William filed exceptions to these recommendations and a hearing was held on the petition in January, 1979. Neither William nor Ethel was present. The hearing officer was the sole witness for a scant five pages of testimony. Based on that testimony and on evidence outside of the record before us, the lower court adopted the recommendation of the hearing officer and denied any rehearing on appellant's petition. It is from this order which appellant appeals to us.

On appeal, the major issue for our consideration is whether the lower court judge abused his discretion by denying appellant's petition for modification. Initially, we note that our standard of review in such cases is narrow and that an order of the hearing court may not be reversed absent an abuse of the court's discretion or an error of law. Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa. Super. 127, 392 A.2d 717 (1978). Admittedly, the petitioner for the modification of a support order has the burden of proving that circumstances have changed which are sufficient to warrant a modification of an existing order. Commonwealth ex rel. Littman v. Littman, 260 Pa. Super. 97, 393 A.2d 1030 (1978). In the instant case, the hearing judge concluded that appellant had not met his burden of showing a change in circumstances. The judge was unpersuaded by appellant's argument that he was unable to confront Ethel, and concluded that appellant should have subpoenaed his witnesses. He stated further that the decision would have been no different had Ethel appeared due to the hearing officer's testimony that William agreed to pay $15.00 per month per child and $35.00 per month arrearages to the Department of Welfare rather than to Ethel. Ethel's failure to appear could not be deemed a ground for the denial of her children's right to support.

[ 278 Pa. Super. Page 34]

The notes of testimony of the hearing reveal only that appellant had offered to pay $15.00 per month for each child at a prior domestic relations hearing. No one knew the whereabouts of Ethel and the children and few visitations had occurred between appellant and his family. Although a mother's actions may not constitute a ground upon which to deny her children support except in extreme circumstances, Kramer v. Kelly, 265 Pa. Super. 58, 401 A.2d 799 (1979); Commonwealth ex rel. Chila v. Chila, 226 Pa. Super. 336, 313 A.2d 339 (1973), the record before us does not give us sufficient information to decide exactly what circumstances Ethel has created. All we can discern insofar as her conduct is concerned is that she repeatedly failed to appear at the hearings since 1976. Because the duty to support is one shared equally by both parents, Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974), Ethel's whereabouts and her earning capacity were material to any court hearing on a petition for modification. Certainly, Ethel's financial situation and conduct could have affected the arrearages aspect of appellant's case.*fn* Commonwealth ex rel. Zercher v. Bankert, 266 Pa. Super. 595, 405 A.2d 1266 (1979).

Ethel's continued failure to appear at any of the scheduled hearings presents two major problems. First, it prohibits appellant from proving that there is a change in circumstances on Ethel's part, i. e., whether or not she is working. Second, Ethel's failure to appear prevents the Department of Public Assistance's proof as to whether she is entitled to receive continued assistance if, in fact, that is the case and therefore, whether the Department has right as a subrogee to the money appellant must pay ...


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