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JOANNE R. PRESCOTT (NALITZ) v. DONALD JAMES PRESCOTT (02/20/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 20, 1981.

JOANNE R. PRESCOTT (NALITZ), APPELLANT,
v.
DONALD JAMES PRESCOTT

No. 399 April Term, 1979 Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, No. D-151 of 1965

COUNSEL

James D. Belliveau, Braddock, for appellant.

Alice Dobson, Pittsburgh, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Brosky

[ 284 Pa. Super. Page 431]

Joanne R. Prescott (Nalitz) has appealed from the trial court's order denying her petition for collection of arrearages and granting her ex-husband's petition for cancellation of arrearages accrued pursuant to an order for support dated August 5, 1979 providing for payment of support in the amount of $25 per week and $5 per week on arrearages. Appellant disputes the weight given by the lower court to payments made by appellee directly to or on behalf of the parties' children. She contends that although she did accept some money from her ex-husband directly, outside of the court order, the lower court improperly credited appellee for these payments with the result that it decided to cancel all the arrearages. Mrs. Nalitz does not disagree that the arrearages should have been partially remitted. Her claim is that the court abused its discretion to remit arrearages in this instance by canceling all the arrearages owed.

That the trial court has the power to remit arrearages is without question.*fn1 However, it must in doing so take into consideration all relevant factors. Commonwealth ex rel. Fryling v. Fryling, 220 Pa. Super. 68, 283 A.2d 726 (1971).

The period before the court was limited by stipulation to August 18, 1970 to December 31, 1974 and not "to the present" as stated in the trial court opinion. As of August

[ 284 Pa. Super. Page 43218]

, 1970, the arrearages amounted to $4,747.50, according to the records kept by the Allegheny County Family Division's Collection and Disbursement Office. The trial court found that the arrearages as of August 18, 1970 amounted to $3,497.50 but gave no explanation as to how it arrived at this figure. From an examination of the record, we are unable to ascertain the basis for the trial court's finding. For the period before the court, the arrearages totaled $7,754.50, based on certain calculations.*fn2

Appellant contends that the trial court erred in allowing her ex-husband credit for certain payments and calls our attention to items contained in a part of the record entitled, "Summary of Defendant's Case" apparently drawn up by appellee's counsel for the trial court's benefit and upon which the trial court appears to have placed a great deal of reliance. The Summary refers to certain medical expenditures, such as, "Balance of Orthodontia for Charles," for $1,050, contracted January, 1975. Clearly, this amount is outside the period ending December 31, 1974, and the court below should not have given appellee credit for this payment.

In addition, of the $2,184 amount indicated in the Summary as being for medical expenses, $409 of the amount was

[ 284 Pa. Super. Page 433]

    paid after December 31, 1974; and it was error for the court to give appellee credit for this amount.*fn3 Appellee also should not have been given credit for a check issued to his son, Joseph, dated February 1, 1976 for the same reason.*fn4

Appellant also contends that the court below erred in allowing appellee credit for payment of "non-essential" items. An examination of the record and of appellee's testimony indicates that many of these payments were for items such as birthday and Christmas gifts,*fn5 boy scout equipment (T. 68), camping equipment (T. 72), scuba diving lessons (T. 73), and a color television set (T. 70).

The trial court conceded that "there is some doubt . . . as to the amount represented by these checks which would be

[ 284 Pa. Super. Page 434]

    considered gifts for birthdays, Christmas or special situations as compared to everyday support requirements." In another part of the opinion, the court, in finding that appellee should be given credit for the payments made by him directly to or on behalf of the boys, states: "[F]or these he should be given credit, allowing, of course, for certain discrepancies for gifts and so forth. . ." (Emphasis added.) By these statements, the court acknowledged that many of the checks were for nonessential items and indicated that an adjustment should be made accordingly. However, the court made no such adjustment.*fn6 On the subject of voluntary expenditures made by a non-custodial parent for nonessential items such as recreational and sporting equipment, we stated in Shapera v. Levitt, 260 Pa. Super. 447, 394 A.2d 1011 (1978):

We cannot consider the expenditures that the appellee volunteers for his son as a substitute for a support order. The mother, as the custodial parent, has the responsibility of life for the son. She is entitled to the certainty that a reasonable contribution will be made toward that expense and must be in a position to control the expenditures for the necessities of the young man's existence. Gifts to the son beyond that standard are, of course, welcomed by the son and may contribute to his happiness and well-being; but they cannot be made a substitute for a fair contribution to the custodial parent for basic support. Id., 260 Pa. Super. at 452-453, 394 A.2d at 1014.

Here, we find that appellee should not have been given credit for these expenditures for nonessential items, especially in light of the fact that because of appellee's failure to make regular support payments, appellant was

[ 284 Pa. Super. Page 435]

    forced to go on public assistance. The fact that appellee chose to purchase luxury items for his sons does not change the fact that he had a court-ordered obligation to contribute to their basic support and welfare first, which he failed to do.

We find, in light of the record in this case, that the lower court abused its discretion in completely canceling all of the arrearages owed. An abuse of discretion does not necessarily imply a willful abuse, but if,

[I]n reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

Commonwealth v. One 1961 Buick Special 4-Door Sedan, 204 Pa. Super. 293, 295, 204 A.2d 288, 289 (1964). (Emphasis added.) Adelman v. John McShain, Inc., 148 Pa. Super. 138, 24 A.2d 703 (1942).

Here, the trial court's action in canceling all of the arrearages was "manifestly unreasonable" as shown by the evidence, and we, therefore, reverse.

Order is reversed and remanded with directions to determine the issue of arrearages, if any, and to grant appropriate relief consistent with the views expressed in this opinion.


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