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COMMONWEALTH PENNSYLVANIA EX REL. NANCY LEE STONE v. JAMES F. STONE. APPEAL NANCY LEE STONE (12/29/81)

filed: December 29, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. NANCY LEE STONE, APPELLANT,
v.
JAMES F. STONE. APPEAL OF NANCY LEE STONE



No. 221 Harrisburg, 1980, Appeal from the Order entered November 3, 1980 of the Court of Common Pleas of Dauphin County, Civil Division, at No. 41 DR 1980

COUNSEL

Scott K. Oberholtzer, Middletown, for appellant.

Paul J. Esposito, Harrisburg, for appellee.

Brosky, McEwen and Beck, JJ.

Author: Brosky

[ 293 Pa. Super. Page 428]

The instant appeal is from the lower court's order denying appellant-wife's petition for an increase in child support for her eleven year old son. The lower court held that there had been no material change in circumstances which would warrant an increase. Because we find that the court below abused its discretion, we reverse and remand for a full evidentiary hearing on the merits.

The facts are as follows. On November 3, 1980, appellant appeared with her counsel before the Honorable William W. Caldwell of the Court of Common Pleas of Dauphin County, Pennsylvania, pursuant to her petition for a modification of the support order presently in effect between the parties. The support order was based upon a detailed property settlement agreement between the parties entered into April 25, 1980.

At the hearing, appellant's attorney briefly outlined appellant's basis for the modification request. Counsel for appellee then made a few remarks in rebuttal. There was no testimony taken under oath at any time during the proceedings; neither attorney was sworn, and neither appellant nor appellee testified. There were no exhibits properly introduced or made a part of the record. Although appellee's counsel produced a copy of the property settlement agreement, the agreement was not authenticated by counsel, nor was it offered into evidence. On the basis of the attorneys'

[ 293 Pa. Super. Page 429]

    presentation, the court made findings and entered an order pursuant to those findings.

In Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa. Super. 283, 406 A.2d 805 (1979), we held that the lower court had abused its discretion in entering an order increasing a support order, based solely upon the court's brief discussion with appellant and counsel. In Haertsch, as in the case at bar, no testimony under oath was taken or any exhibits were introduced, to prove a change in circumstances.

As we stated in that case:

The law is clear that a support order may only be modified when the evidence produced at a hearing shows a change in circumstances that would justify the modification. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa. Super. 93, 369 A.2d 309 (1976). The burden is on the party seeking modification to present such evidence on the change of circumstances. Bell v. Bell, 228 Pa. Super. 280, 323 A.2d 267 (1974). An appellate court will not overturn a support order entered by the lower court absent an abuse of discretion. Commonwealth ex rel. Schmitz v. Schmitz, 237 Pa. Super. 519, 352 A.2d 103 (1975). However, we find the lower court's order in this case, absent a full hearing on ...


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