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MARGARET LESMEISTER URBAN v. EDMUND J. URBAN (04/16/82)

filed: April 16, 1982.

MARGARET LESMEISTER URBAN, APPELLANT,
v.
EDMUND J. URBAN



No. 1551 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Domestic Relations Section, Bucks County, at No. A06-80-00191-S-10-3

COUNSEL

Roland J. Christy, Spring House, for appellant.

Martin J. King, New Hope, for appellee.

Spaeth, Cavanaugh and Montemuro, JJ. Cavanaugh, J., concurs in the result.

Author: Montemuro

[ 298 Pa. Super. Page 226]

Appellant takes this appeal from the Order of the lower court entered on June 5, 1981, directing the appellee to pay $595 per month towards the support of his wife (appellant hereinafter) and his two minor children, Gregory and Andrea, allocated $210.00 per month per child and $175 per month for appellant.

Appellant argues that the support order entered by the lower court constituted an abuse of discretion. We agree and for the following reasons we reverse and remand for a rehearing.

In deciding this case, we are guided by the following rules of law which set forth our scope of review and which we reviewed in Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa. Super. 390, 358 A.2d 102 (1976):

The appellate review of support orders is very narrowly defined and upon appellate review, we will not, and indeed should not, interfere with the lower court's determination absent a very clear abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Super. 116, 111 A.2d 157 (1955).

It is not for us to decide whether we would have made a similar order, or in fact, any order at all, but merely to determine whether the trial court is chargeable with abuse of discretion. Commonwealth ex rel. Groff v. Groff, 173 Pa. Super. 535, 98 A.2d 449 (1953). As our court stated in Irwin Borough Annexation Case (No. 1), 165 Pa. Super. 119, 133, 67 A.2d 757, 764 (1949):

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 93, 176 A. 236. "When the court has come to a conclusion by the exercise of its discretion, the party complaining of it

[ 298 Pa. Super. Page 227]

    on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power." In re Garrett's Estate, 335 Pa. 287, 292, 6 A.2d 858, 860.

Appellant and appellee were married on June 27, 1970. Two children were born of this marriage: Gregory was born March 5, 1975 and Andrea was born November 4, 1978. The parties separated on December 25, 1978 and the children continued to reside with appellant. Shortly after the separation appellee moved from Pennsylvania to San Jose, California and in January, 1979 the appellant filed a petition for support in Bucks County, Pennsylvania, under the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C.S.A. ยง 6741 et seq.; 1976, July 9, P.L. 586, No. 142, Sec. 2, eff. June 27, 1978. In June or July of 1979, the court in California entered an unallocated order of $600 per month for appellant and the two children.*fn1

On October 2, 1980, appellant filed the present support petitions in the Court of Common Pleas of Bucks County, Commonwealth of Pennsylvania and therein she requested the sum of $1025 per month for herself and her two children.*fn2

[ 298 Pa. Super. Page 228]

The parties appeared for a pre-hearing conference before a domestic relations officer of the Domestic Relations Section in Bucks County Court of Common Pleas in February of 1981 and they each submitted financial data statements. Since the parties could not reach an agreement, the matter was referred for a hearing before a Judge of the Common Pleas Court of Bucks County.

The financial data which was submitted by the parties to the domestic relations officer at the pre-hearing conference does not appear as part of this record; thus, our review, limited as it is, has been made extremely difficult.

We do know that appellant was unemployed at the time of the court hearing and had been unemployed since January of 1975. As already indicated, the parties' first child, Gregory, was born March 5, 1975. Their second child, Andrea, was born November 4, 1978 and so at the time of the court hearing, Gregory was a little over 6 years old and Andrea was a little over 2 1/2 years old.

Appellant testified that she taught in a parochial elementary school from September, 1969 through January, 1975 (N.T. 10). Although appellant did not testify as to her earning as a teacher, appellee testified that she earned approximately $5800 per year.

Appellant's testimony with reference to her expenses indicated that she was paying $380 per month rent for a townhouse owned by her parents.*fn3 (N.T. 5, 12). After making several adjustments to the list of expenses she had

[ 298 Pa. Super. Page 229]

    presented at the pre-hearing conference on February 20, 1981 (N.T. 5), she testified that her total monthly expenses had risen from $1074 to $1124. (N.T. 10).

Appellee is 33 years of age and at the time of the pre-hearing conference, he resided at 4405 Norwalk Drive, San Jose, California. He is employed by Johnson and Johnson Dental Products Company, a division of the Johnson and Johnson Company.

Appellee's testimony with reference to his present income is confusing and uncorroborated by documentation. The only documentary evidence pertaining to his income was his 1979 United States Individual Tax Return Form 1040, which was ...


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