Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

ENRICO AGOSTI v. FAYE D. AGOSTI (09/30/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 30, 1983.

ENRICO AGOSTI
v.
FAYE D. AGOSTI, APPELLANT

No. 977 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Indiana County, No. 1799 C.D. 1980, Civil Division.

COUNSEL

Chere Winnek-Shawer, Indiana, for appellant.

Wayne Andrew Kablack, Indiana, for appellee.

Cavanaugh, Rowley and Cirillo, JJ.

Author: Per Curiam

[ 319 Pa. Super. Page 426]

This is an appeal from a final decree in divorce entered August 31, 1981, pursuant to Section 201(d) of the Divorce Code. Act of April 2, 1980, P.L. 63, § 101 et seq., 23 P.S.

[ 319 Pa. Super. Page 427]

§ 101 et seq. (Supp. 1983). Appellant, Faye D. Agosti, raises three issues on appeal:

I. Did the trial court err in the disposition of the marital property?

II. Did the trial court err in the amount of child support awarded to appellant for the parties' minor son?

III. Did the trial court err in refusing to award appellant alimony?

Issues I and III have been waived since no exceptions were filed to the trial court's final decree, in contravention of Pa.R.C.P. 1920.52(a). Issue II, however, has not been waived since Pa.R.C.P. 1920.52(b) imposes no similar requirement on claims involving child support.*fn1

With respect to Issue II, appellant contends: (1) that the amount of support ordered by the trial court was inadequate in view of the minor son's special needs occasioned by his mental retardation, (2) that the record relied on by the trial court was devoid of any credible evidence concerning appellee's income or ability to pay, and (3) that the trial court erred in simply reconfirming the earlier order of child support which had been made together with a prior order for spousal support.

In Shank v. Shank, 298 Pa. Super. 459, 444 A.2d 1274 (1982), our court stated that:

[ 319 Pa. Super. Page 428]

    hearing. Pawol v. Pawol, 293 Pa. Super. 29, 437 A.2d 974 (1981).

Id. 298 Pa. Super. at 462, 444 A.2d at 1276.

In the final decree entered August 31, 1981, the trial court directed appellee to pay $175.00 a month towards the support of the parties' then eight year old son, Enrico C. Agosti II, who lived with appellant. In its opinion filed in conjunction with the final decree, the trial court stated that it had, on its own, consolidated the support action previously brought by appellant at No. 167 D.R.D. 1976 with the divorce action brought by appellee at 1799 C.D. 1980, and that it was incorporating in the divorce decree the assessment of $175.00 a month which had been established by a prior order of support. Although the trial court indicated that it was aware that the parties' son had some kind of "learning difficulties," it asserted an inability to evaluate those difficulties with respect to the issue of support since "neither party saw fit to explain to the Court" the "precise nature" of the same.

It is true that neither appellant nor appellee discussed in any depth the mental condition of their son, nor the economic ramifications his disability imposed, at the hearing held before the trial court on July 1, 1981. However, that hearing was purportedly held to address the issues raised by the parties in the divorce action filed at 1799 C.D. 1980. Those issues only encompassed the grounds for divorce, alimony, custody and distribution of the marital property. The trial court never advised the parties at that hearing that it intended to consolidate the support action with the divorce action, nor that the question of child support would be addressed in the final decree. Consequently, the testimony adduced at the July 1, 1981, hearing was not directed towards that issue.*fn2

It is obvious that any mental difficulties the minor child might have would be "relevant" in fashioning an award of

[ 319 Pa. Super. Page 429]

    support. So too would be appellee's ability to pay the amount of support ordered.*fn3 Because the record is lacking on these key factors, we are unable to render a proper evaluation of appellant's claims. Consequently, we must remand the case for a full evidentiary hearing on the issue of child support. See Shank, supra.

Case remanded.

Jurisdiction is relinquished.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.