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filed: February 18, 1983.


No. 1606 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Northampton County, June Term, 1979, No. 265-1979.


Robert G. Rosen, Lansdale, for appellant.

Dominick Lockwood, Easton, for appellee.

Price,*fn* Montemuro and Van der Voort, JJ.

Author: Price

[ 311 Pa. Super. Page 34]

George Scanlon, appellee, filed a petition for modification from a support order entered on October 26, 1979. By the terms of the order, Mr. Scanlon was to pay $150.00 a week for the support of his two children and $25.00 a week to Judith Scanlon, appellant, for her support. On June 10,

[ 311 Pa. Super. Page 351980]

, the Honorable Richard D. Grifo filed an order removing Mrs. Scanlon from the support order and lowering the amount of support for the children to $113.00 a week. Mrs. Scanlon appeals from the part of the order lowering the amount of support for the children.

The facts of the case are as follows. Mrs. Scanlon filed a Petition for Support against Mr. Scanlon on February 2, 1979 seeking support for herself and the parties' two minor children. A hearing was held before the Domestic Relations Division of Northampton County on March 7, 1979. At the time of the hearing, Mr. Scanlon was employed as a center manager for United Parcel Service, his employer for the past ten years. His income was certified by his employer at a gross pay of $505.00 per week, with a net of $384.00 per week. No agreement was reached at this hearing and the matter was set to be listed for trial.

Negotiations between the parties continued and the trial date was postponed by agreement. As a result of these negotiations, Mr. Scanlon agreed to pay $175.00 a week, the amount recommended by the support office. This agreement was executed by the parties on September 18, 1979. The parties' residence was sold the same day and Mrs. Scanlon and the two children moved to Lansdale, Montgomery County where Mrs. Scanlon grew up. On September 19, 1979, Mrs. Scanlon began her employment with McNeil Laboratories. On October 26, 1979 the Court below entered its order in support directly along the lines set forth in the agreement.*fn1

Mr. Scanlon testified that he signed the agreement (of September 18) and reviewed it with his attorney. (R. 76a). Specifically, the agreement provided that the sum of $175.00 a week would be paid by Mr. Scanlon until the divorce was completed. After the divorce, the sum would decrease to $150.00 a week as support for the two children. This order also provided that the amount ordered for the

[ 311 Pa. Super. Page 36]

    children was to remain in full force and effect for three years or until February 2, 1982, "regardless of any change in circumstances of either party." (R. 44a).

Mr. Scanlon did not make the weekly payments as agreed. In fact, he only made one of the payments until the court issued an order attaching his wages on November 30, 1979. (R. 47a-49a). At the time of the entry of the Order of Attachment, and also at the time of the hearing on June 5, 1980, Mr. Scanlon was in arrears $175.00.

No appeal was taken from the order of the court of October 26, 1979. However, in March of 1980, Mr. Scanlon filed a petition to reduce support. The basis for this petition was that the order of the court was too great and that Mrs. Scanlon was now working full time.

Pursuant to the Petition for Modification, a conference was held before the Domestic Relations Section on May 7, 1980. Mrs. Scanlon's income was certified from her employer at $149.00 per week. Mr. Scanlon's income had increased by $20.00 a week in gross, but for some reason his certified net income was not adjusted appropriately. The support officer made a new recommendation which Mrs. Scanlon rejected.

A hearing was held on June 5, 1980 before the Honorable Richard D. Grifo. After the support officer reported the findings of the support office to the Court, Mrs. Scanlon's counsel moved that the court refuse to proceed with the Petition to Reduce Support until such time as the arrears had been cleared citing Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964). (R. 67a). The lower court refused the motion. (R. 70a). Mrs. Scanlon agreed that she should be removed from the support order and the hearing proceeded as to the issue of child support.

Mr. Scanlon's direct testimony was very brief.*fn2 (R. 70a). Basically he stated that he had expenses of $740 a month

[ 311 Pa. Super. Page 37]

    and that after support was deducted he was only clearing $620, and that he had no other income.

Under cross-examination, it was admitted by Mr. Scanlon that his present abode was with his girlfriend in a home that was mortgaged by his girlfriend and the girlfriend's aunt. His girlfriend's income was $270.00 a week net (R. 72a), and her aunt's income was calculated at a gross of an hourly rate of $5.00 per hour and that she worked a forty hour week with some occasional overtime. Mr. Scanlon testified that he contributed $230.00 a month for living expenses of the household.

The employer's certification of income showed stock received by Mr. Scanlon on March 31, 1980 of $3,112.00 gross for a net receipt of $2,378.00. (R. 54a). The value of the stock currently held in his name was approximately $5,300.00. (R. 92a).

Mr. Scanlon claimed that his expenses amounted to $925.00 per month.*fn3 However on cross-examination he testified that of these claimed expenses he had never actually paid the amount listed for food and utilities, amounting to $350.00 a month (R. 86a). Mr. Scanlon made it clear that in the future he wished to contribute more money to his new household. (R. 85a-86a).

[ 311 Pa. Super. Page 38]

Mrs. Scanlon testified that Mr. Scanlon knew of her impending employment before he signed the agreement. (R. 93a). She began work the day after the house was sold as both parties had anticipated according to her uncontradicted testimony.

The lower court based its modification of the order on the fact that Mrs. Scanlon had begun to work full time. We cannot agree with the lower court's conclusion that Mr. Scanlon proved a change in circumstances such as to warrant a reduction of the order.*fn4

We recognize that the role of an appellate court in support proceedings is limited; absent a clear abuse of discretion, we will defer to the order of the lower court. Commonwealth ex rel. Vona v. Stickley, 287 Pa. Superior Ct. 296, 430 A.2d 293 (1981).*fn5 "A finding of abuse is not

[ 311 Pa. Super. Page 39]

    lightly made but only upon a showing of clear and convincing evidence." Commonwealth ex rel. Caswell v. Caswell, 280 Pa. Superior Ct. 359, 365, 421 A.2d 762, 765 (1980).*fn6

An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error. Prescott v. Prescott, 284 Pa. Superior Ct. 430, 435, 426 A.2d 123, 126 (1981).

Commonwealth ex rel. Kistler v. Kistler, 291 Pa. Superior Ct. 51, 435 A.2d 214 (1981) clarified Commonwealth ex rel. Kistler v. Kistler, 303 Pa. Superior Ct. 45, 449 A.2d 69 (1982). (emphasis omitted).

When reviewing a petition for modification of a support order, the lower court must consider all pertinent facts and the court's decision must be based upon facts appearing in the record which indicate that the movant did or did not meet his or her burden of proof as to changed circumstances. Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa. Superior Ct. 127, 130, 392 A.2d 717, 718 (1978).*fn7 Appellant has the burden of proving by competent evidence that a material and substantial change of circumstances had occurred since the entry of the original support order. Commonwealth ex rel. Vona v. Stickley, supra; Commonwealth ex rel. Caswell v. Caswell, supra; Bell v. Bell, 228 Pa. Superior Ct. 280, 323 A.2d 267 (1974).*fn8 A

[ 311 Pa. Super. Page 40]

    petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the prior order. Dunbar v. Dunbar, 291 Pa. Superior Ct. 224, 435 A.2d 879 (1981). Thus, although a court is free to disregard an agreement between the parties for support of the children,*fn9 when the agreement adequately provides for the needs of the children and has been recently entered into under court approval, unless a change of circumstances can be shown, there is no justification for ignoring the agreement.

Of course, in any child support proceeding, the main concern is for the welfare of the child. Each parent has a duty which is "well nigh absolute" to support his or her minor children and each may have to make sacrifices in order to meet this burden.*fn10

We are unable to conclude that Mr. Scanlon has carried his burden of proof. His one paragraph of testimony along with that later elicited through cross-examination and redirect indicates no material or substantial change in his financial circumstances. Therefore his argument that the order was too great cannot be given any merit when his own proof established only that his income had increased slightly.*fn11

It is also uncontradicted but that Mr. Scanlon was aware that Mrs. Scanlon was to begin employment. Mrs. Scanlon testified as to this fact. (R. 93a-94a). The record also indicates that Mrs. Scanlon's employment began before the original order was finally entered.

[ 311 Pa. Super. Page 41]

*fn* Died Jan. 30, 1983. Decision was reached prior to the death of Judge Price.

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