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BEVERLY SMITH v. WILLIAM B. SMITH (03/13/81)

filed: March 13, 1981.

BEVERLY SMITH
v.
WILLIAM B. SMITH, APPELLANT



No. 776 October Term, 1979, Appeal from Order in the Court of Common Pleas of Montgomery County, Criminal Division, No. 3684-78.

COUNSEL

Barry M. Miller, Norristown, for appellant.

William Kinsley, Philadelphia, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 285 Pa. Super. Page 148]

Presently before us is appellant William B. Smith's appeal from the order of support of the lower court dated March 27, 1979.*fn1

The Order directed appellant to pay: (a) $75 a week for the support of appellee-wife; (b) $35 a week for the support of his minor son who resides with the appellee; (c) the mortgage, taxes and insurance on the parties' entireties property (appellee and the minor son reside therein); (d) the electric and/or oil and gas bills on said entireties' property; and (e) $15 a week arrearages which may be liquidated from the time of the entry of a temporary order of support dated November 14, 1978.

We affirm the subsections of the appealed-from order identified above as (a), (b), (c) and (e) and will remand subsection (d).

Appellant raises five issues on appeal: (1) that appellee did not meet her burden of establishing her "needs" and those of her nine-year old son; (2) that in making its order, the lower court failed to consider appellee's "earning capacity";

[ 285 Pa. Super. Page 149]

(3) that the lower court erred in ordering appellant to pay the actual monthly expenses (e. g. a mortgage, taxes, insurance, electric and/or oil and gas) on the parties' entireties property in which appellee and the minor son reside. Appellant contends that this portion of the order lacks requisite specificity, is too indefinite, and places the appellant in a position of financial uncertainty.

We have reiterated our statement found in Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa. Super. 572, 574, 407 A.2d 389 at 390-1 (1979) that:

Our scope of review is limited to a determination as to whether the order of support can be sustained on any valid ground. Marvin v. Marvin, 193 Pa. Super. 179, 164 A.2d 128 (1960). We must determine whether there was sufficient evidence to sustain the lower court or contrariwise whether the lower court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence. Com. ex rel. McQuiddy v. McQuiddy, 238 Pa. Super. 390, 358 A.2d 102 (1976); Com. ex rel. ...


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