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TRACY KAY DEILEY v. JAMES D. DEILEY (10/03/80)

filed: October 3, 1980.

TRACY KAY DEILEY, APPELLANT,
v.
JAMES D. DEILEY



No. 645 October Term, 1979, Appeal from Order in the Court of Common Pleas of Lehigh County, Criminal Division, No. 1134-A/1978.

COUNSEL

James B. Martin, Allentown, for appellant.

James D. Deiley, for appellee, in pro. per.

Hester, Montgomery and Cirillo, JJ.*fn* Cirillo, J., files a dissenting statement.

Author: Per Curiam

[ 281 Pa. Super. Page 289]

OPINION

Presently before the court is appellant's appeal from an order of the lower court dated March 5, 1979 wherein appellant's complaint for support was denied.

The facts may be briefly summarized as follows: On October 9, 1978, appellee filed a petition for reduction in support alleging that his daughter, the appellant, had become emancipated on September 29, 1978 when she reached her 18th birthday, thus discharging his paternal support obligation. There after, on November 20, 1979, appellant filed her own complaint for support requesting support from her father, the appellee, in the amount of $103.00 per week while attending college. Appellee's petition and appellant's complaint were consolidated and heard on February 9, 1979. On March 5, 1979, the court issued its order which impliedly granted appellee's request for reduction and expressly denied appellant's complaint for support on the theory that appellee's "income is inadequate to provide support without creating an undue hardship." It is from this order that the instant appeal has been taken.

With respect to our scope of review in matters of support: initially, it is appropriate to observe that the trial court possesses wide discretion as to the proper amount of support payments and, unless surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed. Commonwealth ex rel. Berry v. Berry, 253 Pa. Super. 268, 384 A.2d 1337 (1978); Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa. Super. 605, 346 A.2d 822 (1975).

[ 281 Pa. Super. Page 290]

The scant record demonstrates that there is no dispute that appellant has the ability and willingness.

"Q. Do you dispute the fact that you daughter has the desire and ...


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