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COMMONWEALTH EX REL ELIZABETH A. DOUGHERTY v. WILLIAM A. DOUGHERTY (06/27/80)

SUPERIOR COURT OF PENNSYLVANIA


June 27, 1980

COMMONWEALTH EX REL ELIZABETH A. DOUGHERTY,
v.
WILLIAM A. DOUGHERTY, APPELLEE; APPEAL OF: ELIZABETH A. DOUGHERTY

No. 772 Oct. Term, 1979, APPEAL FROM ORDER DATED MARCH 19, 1979, OF THE COURT OF COMMON PLEAS, FAMILY DIVISION, DOMESTIC RELATIONS BRANCH, FOR THE COUNTY OF PHILADELPHIA, D.R. N. 75-01025

Before Hester, Montgomery and Cirillo, JJ.*fn*

Per Curiam.

Affirmed on the Opinion of the Court below.

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY FAMILY COURT DIVISION

COMMONWEALTH EX REL. ELIZABETH A. DOUGHERTY v. WILLIAM A. DOUGHERTY

D.R. No. 75-01025

BY STERN, J.

This matter came before the court upon the petition of Elizabeth A. Dougherty seeking an increase of support for two children from William A. Dougherty and for an attachment.*fn1 On February 21, 1978, an order was entered by agreement requiring the respondent to pay $65.00 per week for the children plus $10.00 per week on account of arrears. This order was predicated upon the assumption that the respondent earned a gross income of $20,000.00 per year.*fn2 Upon discovery that his income exceeded this amount, the case was relisted and on March 19, 1979, after a hearing, this court entered an order increasing the support to $115.00 per week plus $10.00 per week on account of arrears. By agreement, the order was made retroactice to November 29, 1978.

The evidence disclosed that the respondent is now earning a gross income of $3,000.00 per month or $1,864.00 after taxes.*fn3 In an exhibit he claimed personal expenses of $1,430.00 per month and expenses of $325.00 per month for the support order and $34.47 per month for the children's insurance. In sum, he represented that he was able to pay only an additional $74.53 per month or $17.20 per week. The petitioner, on the other hand, receives $108.00 per week unemployment compensation.*fn4 She claimed expenses for the children of $803.58 per month or $185.44 per week.*fn5

In arriving at a decision this court was guided by the precedents of our appellate courts concerning the support of children. It is clear that the purpose of an order is to provide a satisfactory allowance for the maintenance of the child and to promote his or her welfare. Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa. Superior Ct. 26, 344 A.2d 578 (1975); Commonwealth ex rel. Collins v. Collins, 232 Pa. Superior Ct. 105, 331 A.2d 675 (1974). The order must not be punitive or confiscatory but must be based on the parent's ability to pay, making sufficient allowance for his or her reasonable living expenses. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Commonwealth ex rel. Berry v. Berry, 384 A.2d 1337 (Pa. Super. 1978); Commonwealth ex rel. Burns v. Burns, 251 Pa. Superior Ct. 393, 380 A.2d 837 (1977); Commonwealth ex rel. Collins v. Collins, supra. Both parents have an obligation to support their children. Costello v. LeNoir, supra ; Commonwealth ex rel. Burns v. Burns, supra ; Commonwealth ex rel. Kaplan v. Kaplan, supra ; Kaper v. Kaper, 227 Pa. Superior Ct. 377, 323 A.2d 222 (1974). Therefore, in making an order, the earning capacity of the petitioning parent as well as that of the responding parent must be considered. Commonwealth ex rel. Kaplan v. Kaplan, supra ; Kaper v. Kaper, supra. Finally, where, as here, a modification of a support order is sought, the petitioner must demonstrate such a change in circumstances as will justify a change in the order. Commonwealth ex rel. Littman v. Littman, 393 A.2d 1030 (Pa. Super. 1978); Commonwealth ex rel. Burns v. Burns, supra.

The evidence in the case at bar clearly showed that the petitioner was entitled to an increase in the order. The respondent was earning $36,000.00 per year at the time of the hearing compared to the $20,000.00 per year figure upon which the February 21, 1978 order was based.*fn6 He claimed that he was unable to pay more than an additional $17.20 per week but this was based on an inflated list of expenses. While these expenses were not seriously challenged, this court felt that the respondent could pay $115.00 per week, which is an increase of nearly 80 percent over the prior order of $65.00 per week.

Under the order, the respondent is paying his full share of the children's support, the total cost of which was determined to be $175.00 per week.*fn7 Although the petitioner testified that she receives only $108.00 per week as unemployment compensation,*fn8 the evidence shows that she could be earning a net income of approximately $140.00 per week. She has previously worked as a secretary earning a gross income of $190.00 per week and the respondent, who is an executive in an employment agency, testified that there are similar positions open to her paying $200.00 per week. Furthermore, she herself testified that she turned down a job paying $170.00 per week. Under these circumstances, the court did not feel bound by the petitioner's actual income. See Commonwealth ex rel. Kaplan v. Kaplan, supra. Based on an earning capacity of $140.00 per week she would be left with $80.00 per week after paying the $60.00 difference between the cost of supporting the children and the amount of the order. The petitioner presented little evidence as to her own needs but this court is of the opinion that she should be able to support herself on the $80.00 balance, especially considering that two-thirds of the common expenses are covered by the children's support order.

By making the instant order retroactive, the respondent has further become obligated in an amount exceeding $700.00. He will not only be paying a substantial order of $115.00 per week but also $10.00 per week on account of arrears. The same amount was paid towards arrears under the prior order by agreement. At this rate, the arrears will be paid off before the oldest child reaches her fifteenth birthday. In addition, payment of the order is virtually guaranteed since the respondent's wages have been attached.

The petitioner claimed in her "Statement of Matters Complained of on Appeal" that the present order is contrary to the law as set forth in the decision of Commonwealth ex rel. Delbaugh v. Delbaugh, 392 A.2d 717 (Pa. Super. 1978). In that case, the petitioner-wife was receiving support of $30.00 per week plus $10.00 per week on account of arrears. On a petition to increase, the lower court made a determination that the petitioner required $40.00 per week. However, the order was not increased since the petitioner was already receiving a total of $40.00 per week, which included the amount being paid on account of arrears. The Superior Court reversed, holding that "any payment on arrearages must be in addition to and not part of the amount ordered to be paid for Mrs. Delbaugh's support." 392 A.2d at 720. In the present case, the respondent has been ordered to pay $115.00 per week, which, as previously noted, is an increase of rearly 80 percent and is reasonable based on the children's needs and the parties' respective abilities to contribute support. The payment of $10.00 per week arrears is in addition to that amount. Unlike Mr. Delbaugh, the respondent in the case at bar is not being permitted "to pile up arrearages and then use them as an excuse to reduce or to avoid an increase in support payments." 392 A.2d 719. On the contrary, all arrears will be paid in full by the respondent in addition to the increased order of $115.00 per week.


*fn* Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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