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WILLIAM P. MCCURRY v. TERESA M. MCCURRY (06/20/80)

filed: June 20, 1980.

WILLIAM P. MCCURRY
v.
TERESA M. MCCURRY, APPELLANT



No. 117 April Term 1979, Appeal from the Order of the Court of Common Pleas of Washington County, Domestic Relations at No. 41 D.R. 1978.

COUNSEL

William J. Murray, Pittsburgh, for appellant.

Robert L. Ceisler, Washington, for appellee.

Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., concurs in the result.

Author: Spaeth

[ 279 Pa. Super. Page 225]

This is an action for support. The lower court ordered appellee to support his three children, but held that he was not obliged to support appellant, his wife and mother of the children.

The parties were married on September 4, 1965. Their children are Floyd, born in February, 1967, Douglas, born in April, 1970, and Maria, born in March, 1974. The parties separated on February 14, 1977, appellant taking custody of the children. On June 1, 1977, appellee filed a complaint in divorce. In response, on a date not in the record before us, appellant filed a petition for alimony pendente lite and counsel fees. Also, on September 9, 1977, she filed a complaint in support.

Appellant's petition for alimony pendente lite and counsel fees came before The Honorable Thomas D. GLADDEN. After hearing testimony on October 17, 1977, Judge GLADDEN filed an opinion and order on October 28. In his opinion the judge stated:

When they were last living together [appellee] was providing [appellant] with $1,800 per month, out of which she was to pay for food, clothing and utilities for herself and the three children. He paid the mortgage, taxes, auto and house upkeep and maintenance.

We see no reason why this arrangement should not continue. Since it is reported that he has agreed, on a

[ 279 Pa. Super. Page 226]

    temporary basis, to pay $1,000 per month pending the outcome of a petition for support in the Domestic Relations Office, we will Order him to pay an additional $800 per month as Alimony Pendente Lite, or a grand total of $1,800 . . . .

Appellant's complaint in support came before The Honorable Charles G. SWEET, President Judge of the lower court. On February 3, 1978, Judge SWEET entered an order reciting, inter alia, that "[i]t seems that if we get into a hearing in this matter, it will be protracted and complicated because [appellee] is an accountant at a successful level and he has interests in earth moving machinery, a clothing store, and possibly other things." The order went on to provide that appellee should "pay $1,800 a month for four (4) months; to wit, February, March, April and May and that this case will be set, in case settlement has not been reached, for June 9, 1978 at 9:30 a. m." The order also included certain provisions regarding a tractor and the provision of automobile transportation for appellant and the children. The order concluded with the statement that "[s]eventy per cent (70%) of this package is deemed wife support and ten per cent (10%) for each child or thirty per cent (30%)."

A settlement of the case was not reached. Instead, on April 20, 1978, appellee filed a petition for modification of Judge SWEET's order of February 3. The petition alleged that because of appellant's actions, appellee had been forced to leave his employment as an accountant and was therefore unemployed and unable to make the ordered payments. Judge SWEET ordered a hearing to be held on the petition for modification on May 3, "all activity to stay meanwhile." A hearing was held on May 3, and further hearings on June 9, August 28, and October 17. In the course of these hearings, appellant presented a petition asking Judge SWEET to disqualify himself; testimony on this petition

[ 279 Pa. Super. Page 227]

    was heard before the June 9 hearing.*fn1 On November 6, oral arguments were heard. On January 23, 1979, Judge SWEET entered the order that is the subject of this appeal. The order is in two parts. The first part of the order directs appellee to pay $540 per month "for the support of his three children, retroactively to the 20th day of April 1978, with credit for amounts paid by him on account of said children." The second part of the order states that "no order is made for [appellant]." The order recites two reasons for this denial of support: that appellant "procured her husband's dismissal by his employer," and that "[appellee] has proven a case equivalent to a case in divorce."*fn2

-1-

Generally, in a support proceeding the appellate court will defer to the lower court, reversing only for a clear abuse of discretion. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Super. 301, 303, 310 A.2d 672, 673 (1973). This deference is accorded the lower court because it has seen and heard the witnesses. Commonwealth ex rel. Friedman v. Friedman, 223 Pa. Super. 66, 67, 297 A.2d 158, 159 (allocatur refused, 223 Pa. Super. xxxv) (1972)). However, our deference is not uncritical. An order may represent an abuse of discretion if it misapplies the law. Girard Trust Bank v. Remick, 215 Pa. Super. 375, 377, 258 A.2d 882, 884 (1969). It is therefore our responsibility to be sure that in entering its order the lower court correctly applied the law. Commonwealth ex rel. Kraus v. Kraus, 185 Pa. Super. 167, 172, 138 A.2d 225, 227 (1958). An order may also represent an abuse of discretion if it reaches a manifestly unreasonable result. Girard Trust Bank v. Remick, supra. This will

[ 279 Pa. Super. Page 228]

    be the case if the order is not supported by competent evidence. It is therefore also our responsibility to examine the evidence received by the lower court to be sure that the lower court's findings are supported by the evidence. Although we will accept and indeed regard ourselves as bound by the lower court's appraisal of a witness's credibility, Commonwealth v. Goodyear, 270 Pa. Super. 326, 411 A.2d 550 (1979); Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa. Super. 390, 358 A.2d 102 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa. Super. 605, 346 A.2d 822 (1976); we are not obliged to accept a finding that is not supported by the evidence. Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa. Super. 127, 392 A.2d 717 (1978); Shuster v. Shuster, 226 Pa. Super. 542, 323 A.2d 760 (1974).

Applying these principles to the present case, we have concluded that the first part of the lower court's order, directing appellee to pay $540 per month for the support of the children, must be reversed as not supported by the evidence, and that the second part, denying any support to appellant, must be reversed as being based on a misapplication of the law.

-2-

The lower court has not filed a separate opinion in explanation of its order. Instead, under the title, "Order," the court has filed what amounts to a combined order and opinion. The first paragraph of the order directs appellee to support his children, specifying the amount-$540 per month-and the effective date, and making provision for payment of any arrearages. The next two paragraphs of the order then explain or comment upon these directions. The first sentence of the fourth paragraph of the order denies any support to appellant. The balance of the paragraph and the next six paragraphs of the order then state the basis of this denial.

As regards the order for the support of the children, the lower court states, immediately after setting out the terms of the order: "In considering this order, it should be borne in mind ...


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