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JUDITH K. WITHEROW v. WAYNE S. WITHEROW (07/17/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 17, 1981.

JUDITH K. WITHEROW, APPELLANT,
v.
WAYNE S. WITHEROW

No. 302 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Clearfield County, No. 79-615-SD.

COUNSEL

William C. Kriner, Clearfield, for appellant.

No appearance entered or briefs submitted on behalf of appellee.

Cercone, President Judge, and Shertz and Wieand, JJ.

Author: Per Curiam

[ 288 Pa. Super. Page 520]

Must consideration be given to a lump sum Worker's Compensation award in determining the amount of support which a parent can be ordered to contribute to the support of minor children? The trial court refused to consider such an award as an asset to be considered in fixing the amount which Wayne S. Witherow could be compelled to contribute to the support of his three children. Their mother, Judith K. Witherow, appealed, alleging that the Worker's Compensation award should have been taken into consideration. We agree and, therefore, remand for additional proceedings.

At a hearing on March 5, 1980, appellee's counsel stipulated that in June, 1979, his client had received a lump sum Worker's Compensation award of $26,000. The trial

[ 288 Pa. Super. Page 521]

    court held that the award was a capital asset and not to be considered in determining the amount of the support order. Therefore, it based a support order of $280 per month solely on appellee's current income.

The law is clear that in evaluating a parent's support obligation, a court must consider the parent's income and the full nature and extent of the parent's property interests and financial resources. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa. Super. 562, 429 A.2d 665 (1981); Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa. Super. 103, 380 A.2d 398 (1977). To refuse to consider a substantial cash compensation award made to a parent is an abuse of discretion requiring reversal.

The order of the trial court is reversed and vacated; and the case is remanded for proceedings consistent with the foregoing opinion.*fn1


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