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COMMONWEALTH PENNSYLVANIA EX REL. STEPHANIE STICKLEY VONA v. ROBERT STICKLEY (05/22/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 22, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. STEPHANIE STICKLEY VONA
v.
ROBERT STICKLEY, APPELLANT

No. 675 Philadelphia, 1980, Appeal from the Order, entered March 11, 1980, of the Court of Common Pleas, Civil Action-Law, of Chester County at No. 536 N of 1977, Non-Support.

COUNSEL

Eric S. Coates, Oxford, for appellant.

Thomas G. Gavin, West Chester, submitted a brief on behalf of appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Popovich

[ 287 Pa. Super. Page 297]

This is a child support case. Appellant, the father, and appellee, the mother, were divorced in March, 1978, and are the parents of two minor children. On February 14, 1978, the Court of Common Pleas of Chester County entered an order requiring appellant to pay eighty dollars ($80.00) per week plus ten dollars ($10.00) per week in arrearages to appellee for child support. Approximately one year later, appellee filed a petition to increase child support from eighty dollars ($80.00) per week to $125.00 per week. Appellant then filed a cross-petition to reduce support. A hearing

[ 287 Pa. Super. Page 298]

    was held, and both petitions were denied in separate orders. This appeal by appellant followed. For the following reasons, we reverse and remand the matter to the trial court.

In this case, certain facts are undisputed. Appellee began working full-time after the entry of the 1978 support order.*fn1 In 1978, appellee earned $160.00 per week, and appellant earned twice as much, approximately $320.00 per week.

Appellant contends that the trial court's order dismissing his modification petition was erroneous because the trial court failed to articulate in its opinion the full-time employment of appellee. According to appellant, this factor, if considered, would have resulted in a reduction of the child support order. However, we are unable to render a considered opinion on this appeal because we cannot ascertain if the trial court considered the evidence presented on "what, if any, contribution the mother [was] in a position to provide." Conway v. Dana, 456 Pa. 536, 539, 318 A.2d 324, 326 (1974). Since Conway v. Dana, supra, the law in Pennsylvania recognizes that:

"Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability. Thus, when we consider the order to be assessed against the father, we must not only consider his property, income and earning capacity but also what, if any, contribution the mother is in a position to provide." Id. (emphasis supplied)

Furthermore, we recognize that:

"'Each parent's ability to pay is dependent upon his or her property, income and earning capacity, Conway v. Dana, supra [456 Pa.] at 540, 318 A.2d at 326, and is to be determined as of the time at which support payments are sought, Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1968); Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1954);

[ 287 Pa. Super. Page 299]

Mr. Stickley [Appellant] is employed as a welder. He works out of a trade union, the Boilermakers. At the conclusion of a project or job, he reports to his union for a new assignment. Sometimes it takes several weeks before he is provided with work. During these periods he collects unemployment compensation.

According to his own testimony, Mr. Stickley has worked in this capacity for the past ten years. The only difference, according to him was that the past year '. . . has been slower than normal.' N.T. pg. 25. He did not begin working in 1979 until March 22. However, he also testified that he only worked nine months during 1978.

The respondent failed to demonstrate that his circumstances materially and substantially changed. Therefore, his petition to reduce the Order was denied.

By the Court

D. T. Marrone /s/

P. J.

Dated: October 22, 1980"

It is also clear that we are unable to ascertain from the trial court's opinion excerpted above whether "the rule of Conway v. Dana, supra, was satisfied, " Commonwealth ex rel. Lyle, 248 Pa. Super. at 462, 375 A.2d at 189. The trial court's opinion "ignores appellant's argument, and refers only to appellant's '. . . income and earning capacity' without any reference to 'what, if any, contribution [appellee as] the mother is in a position to provide.'" (emphasis supplied) Id.

Despite this error, we have engaged in an independent review of the record in order to determine whether "the rule of Conway v. Dana, supra, was satisfied," and conclude that a remand is appropriate because certain factual matters remain unresolved.*fn2 These matters are within the province

[ 287 Pa. Super. Page 301]

    of the factfinder, the trial judge, and without the scope of our review as an appellate court. See Commonwealth v. Marcocelli, 271 Pa. Super. 411, 415, 413 A.2d 732, 734 (1979).

The first area of inquiry which remains unresolved is whether the trial court believed appellee's testimony that the cost of living expenses for the two children increased approximately $49.75 per week.*fn3 This testimony is relevant to our examination of appellant's contention that the trial court abused its discretion in dismissing his petition for a reduction. Appellee maintained at the hearing that the increased cost of living and medical expenses justified an increase.*fn4 Although not mentioned in the opinion, the trial

[ 287 Pa. Super. Page 302]

    court could have considered the fact that appellee was employed under Conway v. Dana, supra, but dismissed appellant's petition for a reduction on the basis that the employment factor was offset by the cost of living increase.*fn5 Absent a determination by the trial court on the matter of appellee's credibility, this Court can only speculate on the reasons for the dismissal of appellant's petition for reduction.*fn6 See Commonwealth ex rel. Goodman v. Delara, 219 Pa. Super. 449, 281 A.2d 751 (1971).

According to appellee, the medical expenses for the two children also increased over $1,500 since the entry of the original support order [N.T., at p. 34]. Appellee testified that she "thought" that the original support order required appellant to maintain medical insurance for the children [N.T., at p. 36]. Appellant disagreed on both counts. At the hearing, appellant testified that the original support order contained no provision for continued medical insurance coverage

[ 287 Pa. Super. Page 303]

[N.T., at pp. 9-10], and he further explained that the union office in Kansas was instructed to remove appellee and not to remove his two children as dependents [N.T., at p. 4]. The issue of medical insurance coverage was under negotiation by both attorneys at the end of the hearing. There is no indication, from the hearing transcript or otherwise, that the attorneys negotiated an agreement on this issue or that the trial court believed all, part or none of the evidence presented.*fn7 Again, to render a conclusion at this juncture would be an exercise in speculation. See Commonwealth ex rel. Goodman v. Delara, supra. Hence, the matter must be remanded to the trial court for the entry of a "full,

[ 287 Pa. Super. Page 304]

    detailed opinion". See Commonwealth v. Coda, 283 Pa. Super. 408, 411, 424 A.2d 529, 531 (1981). Cf. Knapp v. Knapp, 267 Pa. Super. 554, 557, 407 A.2d 48, 50 (1979) (case remanded a second time to the trial court where the findings of fact, not sufficiently detailed, prevented meaningful appellate review). Upon filing of an opinion, this case is to be returned to this panel and listed at the same number and term.

Remanded to the trial court for disposition consistent with this opinion.


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