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COMMONWEALTH PENNSYLVANIA EX REL. PATRICIA OWENS CASWELL v. WILLIAM D. CASWELL (09/26/80)

filed: September 26, 1980.

COMMONWEALTH OF PENNSYLVANIA EX REL. PATRICIA OWENS CASWELL
v.
WILLIAM D. CASWELL, APPELLANT



No. 2692 October Term, 1978, Appeal from Order of Court of Common Pleas of Montgomery County, No. 221 February Term, 1970, dated October 3, 1978. Petition to Reduce Support Order and Remit Arrearanges.

COUNSEL

Angus R. Love, Norristown, for appellant.

J. Keath Fetter, West Chester, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., files a concurring statement.

Author: Sugerman

[ 280 Pa. Super. Page 362]

Appellant ("Father") appeals an order of the lower court dismissing his petition to reduce a support order. The facts necessary to our disposition are simply stated.

Father and Appellee ("Mother"), divorced in May, 1977, are the parents of two daughters, 14 and 15 years of age at the date of the hearings below. On October 4, 1977, an existing order for the support of the two girls was modified by agreement, and Father was directed to pay the sum of $100 per week as support. At or about the time of the entry of the modified order, Father, 39 years of age, was reputedly earning approximately $1500 monthly as a salesman, but in March, 1978 he lost such employment.

Two months thereafter, on May 23, 1978, Mother filed a petition to increase the support order, and on June 20, 1978, Father filed an answer and a cross-petition to reduce the order. The petitions were consolidated and heard by Judge HONEYMAN of the court below on July 18, 1978.

At the hearing, Father testified that he was yet unemployed, although utilizing the services of several employment agencies and a number of friends in an effort to obtain employment. Father also testified that he owned no assets other than a small balance in one checking and one savings account, an automobile, and an interest in some household furnishings. Father further testified that he had no income from any source. Mother testified that since the date of the modified order, her earnings had increased by the sum of $15 weekly.

At the conclusion of the hearing, Judge HONEYMAN found that the increase in Mother's earnings offset such slight additional income as she might have required for the support of the children, and on that basis he dismissed Mother's petition to increase.

[ 280 Pa. Super. Page 363]

Judge HONEYMAN also found Father's earning capacity had not diminished since the entry of the agreed order, and that there had been no substantial change in circumstances, notwithstanding Father's then lack of income. Accordingly, he dismissed Father's petition to reduce the support order.

Father did not appeal from Judge HONEYMAN's order but on August 25, 1978, some 5 weeks subsequent to Judge HONEYMAN's order filed a second petition to reduce the support order. The petition was heard ...


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