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KENNETH O. BENDER v. THERESA A. BENDER (04/12/82)

filed: April 12, 1982.

KENNETH O. BENDER, JR., APPELLANT
v.
THERESA A. BENDER



No. 1205 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Chester County at No. 1605-N of 1978.

COUNSEL

William J. Litvin, West Chester, for appellant.

Cynthia J. Rosenthal, West Chester, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Cavanaugh

[ 297 Pa. Super. Page 463]

Appellant Kenneth Bender seeks review of an order indefinitely suspending appellee Theresa Bender's obligation to provide support for their nine-year-old daughter, Heather Christina Bender. Mrs. Bender successfully argued before the court below that her obligation to support Heather should be suspended while she remains at home with her infant daughter, Nicole Ginning Brown. For the reasons discussed below, we remand the case for a further evidentiary hearing.

At the time of the hearing below, the parties were in the process of getting a divorce. Mr. Bender had been awarded permanent custody of Heather, the parties' only child. He initiated support proceedings against Mrs. Bender in December, 1978. The court conducted a full hearing during which the parties presented evidence of their respective earning capacities. On April 16, 1979, the court entered an order directing Mrs. Bender to pay support for Heather in the amount of $25.00 per week effective retroactively to December 4, 1978, the date the complaint was filed. Because Mrs. Bender was approximately eight months pregnant at the time of the hearing, the support order was made effective

[ 297 Pa. Super. Page 464]

    only until January 22, 1979*fn1 at which time it was suspended until six weeks following the birth of her baby. The order provided that following the six week hiatus, the payments were to be resumed at the weekly rate of $16, plus $4 per week towards arrearages. No appeal was taken from this order and appellee has made no payments thereon.

Nicole Ginning Brown was born on May 13, 1979. Mr. Bender is not the father of this child. According to the terms of the original order, Mrs. Bender's obligation to pay support for Heather would have recommenced on June 26, 1979. Mrs. Bender made a decision at some point not to return to work after Nicole's birth but rather to remain at home to care for her new baby. On November 9, 1979, she filed a petition to suspend the support order. Mr. Bender then filed a petition seeking to have Mrs. Bender held in contempt for failing to pay pursuant to the order. Following a hearing on both petitions, the court, on April 19, 1980, entered an order suspending indefinitely Mrs. Bender's obligation to pay support for Heather. The court based its decision upon a finding that Mrs. Bender was entitled to remain at home to nurture Nicole.

The parties, as well as the court below, concluded that the outcome of the case depended upon a determination of whether the "nurturing parent doctrine" established by this court in Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa. Super. 108, 380 A.2d 400 (1977) applies in this case. In Wasiolek, the lower court ordered a mother of three minor children to seek employment so that she could contribute to the support and maintenance of the children. The mother, who had primary custody of the children, felt that her presence in the home was more important to the children than the money she would be able to contribute if she was gainfully employed. We agreed and reversed the order, thus carving out an exception to the general rule that a mother has an obligation of support measured not by her

[ 297 Pa. Super. Page 465]

    actual earnings but rather by her earning capacity.*fn2 We ...


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