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CAROLYN SHANK v. ROBERT SHANK (02/08/82)

submitted: February 8, 1982.

CAROLYN SHANK, APPELLANT,
v.
ROBERT SHANK



No. 1091 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Family Division at No. D-2329-1966.

COUNSEL

Mineko S. Avery, Pittsburgh, for appellant.

Glenn Douglas Dolfi, Pittsburgh, for appellee.

Brosky, Cirillo and Popovich, JJ.

Author: Popovich

[ 298 Pa. Super. Page 461]

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting appellant-mother's petition to increase the amount of a prior order of child support.

The initial support order, which was entered on June 21, 1976, directed appellee-father to pay $60.00 per month for the support of the parties' only child, a minor son. In July, 1980, appellant, the mother and custodial parent, filed a petition to increase the amount of the order. This petition was granted, and an order increasing the amount of support to $100.00 per month was entered. This direct appeal by the mother followed.

On appeal, appellant-mother's sole contention is that the lower court abused its discretion in increasing the original support order by only $40.00 per month.*fn1 More specifically, appellant argues that the lower court erred in (1) failing to take into consideration the separate earnings of appellee's second wife; (2) failing to consider the standard of living maintained by appellee for his second family; and (3) entering an inadequate and unreasonable support order. Because we are unable to render a proper evaluation of these claims on the basis of the record presently before us, we reverse and remand for a full evidentiary hearing.

To begin with, this court is obliged, on an appeal from an order of child support, to review the order in light of the following axiom:

[ 298 Pa. Super. Page 462]

"[T]he amount of a child support order is largely within the discretion of the trial judge . . . . A child support order must be fair, not confiscatory, and must be consistent with the parent's station in life and customary standard of living, making due allowance for the reasonable living expenses of the parent." Commonwealth ex rel. Cragle v. Cragle, 277 Pa. Super. 349, 352, 419 A.2d 1179, 1180-81 (1980) (citations omitted).

Accordingly, in evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court. Berry v. Berry, 278 Pa. Super. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Hall v. Hall, 243 Pa. Super. 162, 364 A.2d 500 (1976). Where the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing. Pawol v. Pawol, 293 Pa. Super. 29, 437 A.2d 974 (1981).

Herein, because the lower court failed to consider certain factors in computing appellee's ability to pay, we are prevented from determining whether the modified order of $100.00 per month was inadequate or patently deficient.

Initially, we note that requests for modification of child support orders are governed by the following principles:

"First, that 'the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,' . . . second, that 'only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order,' . . . and third, that 'a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to ...


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