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ALLENE D'ARCIPRETE v. ANDREW G. D'ARCIPRETE (01/13/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 13, 1984.

ALLENE D'ARCIPRETE
v.
ANDREW G. D'ARCIPRETE, APPELLANT

No. 89 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 1384-81 Dkt. 22127.

COUNSEL

Barry M. Miller, Norristown, for appellant.

Frederick C. Horn, Lansdale, for appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.

Author: Hoffman

[ 323 Pa. Super. Page 432]

This appeal involves several challenges to the lower court's support order. We find no merit in appellant's numerous claims and, accordingly, affirm the order of the lower court.

In June 1981, Mrs. D'Arciprete, appellee, filed an action against her husband, appellant, seeking support for herself and their two-year-old son, Matthew. An office conference was held on July 14, but the parties did not come to an agreement. On September 15, 1981, the master recommended support payments of $200 per week, allocating $130 per week to appellee and $70 per week to Matthew, to which appellant filed exceptions.*fn1 On December 17, 1981, a hearing de novo was held before the Honorable Lawrence A. Brown of the Court of Common Pleas of Montgomery County and appellant was ordered to pay $235 per week in support, with $150 per week allocated for appellee and $85 per week for Matthew.*fn2 This appeal followed.

Appellant contends first that the lower court erred in entertaining appellee's testimony concerning her loss of income since the master's hearing because (1) only appellant filed exceptions and (2) her loss of income had yet to occur.*fn3

[ 323 Pa. Super. Page 433]

Appellant overlooks the fact that the hearing before the lower court was a hearing de novo. "De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case." Commonwealth v. Gussey, 319 Pa. Superior Ct. 398, 404, 466 A.2d 219, 222 (1983), quoting Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 367, 243 A.2d 464, 468 (1968). Our position is further supported by the fact that Montgomery County chose to follow the de novo hearing procedure for support actions, see Montgomery County Rules of Procedure 1910.11, rather than the alternative procedure which, in place of providing for a hearing de novo, provides for the filing of exceptions and states that "[m]atters not covered by exceptions are deemed waived," see Pa.R.Civ.P. 1910.12.*fn4 Accordingly, the lower court had discretion in the de novo hearing to consider all the facts in determining whether to accept, reject or modify the master's recommendation.

Appellant's additional contention that appellee's income had not yet been reduced is also meritless. Appellee had been earning $50 per week as a Fuller Brush salesperson but lost her job the week before the hearing de novo. The lower court took this into consideration in awarding support above the amount recommended by the master. (N.T. December 17, 1981 at 10). Although appellee testified that she was still earning income because her job was a

[ 323 Pa. Super. Page 434]

"residual thing" which would phase out completely by the end of the year, we do not agree that appellee's current loss of income had not been evidenced. (N.T. December 17, 1981 at 12). At the time of the hearing de novo, appellee's income had already dropped to $35 per week and was expected to continually decrease over subsequent weeks until its complete cessation. The lower court correctly reasoned:

The [appellant] would have us relegate the [appellee] to filing a petition to modify despite the fact that the hearing was de novo and the Master's figure of $200 a week was a recommendation and not an order. No prejudice was shown by reason of our decision to hear testimony concerning the loss of the job. Certainly it avoided delay and the waste of time and money to both the court and the litigants which another trip through the system would require. Both parties were present and prepared so there was no injury to the [appellant] in denying him the delay he sought.

(Lower Court Opinion at 2-3).

Appellant also argues that the lower court erred in ordering him to bear 70% of appellee's loss of income. He derives the 70% figure from the fact that appellee's prior income was $50 per week and the court's support order was a $35 increase from the amount recommended by the master. Appellant's reasoning is erroneous. "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." Urban v. Urban, 298 Pa. Superior Ct. 224, 226, 444 A.2d 742, 743 (1982), quoting Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa. Superior Ct. 390, 358 A.2d 102 (1976) (citation omitted). Here, appellant was earning $517 a week as a computer analyst and the lower court awarded $235 per week for the support of appellee and the parties' son. We cannot say that this

[ 323 Pa. Super. Page 435]

    order is confiscatory or constitutes an abuse of discretion. See Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1943) (support order for wife and child of $200 per month where husband received $418 per month); and Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa. Superior Ct. 364, 292 A.2d 502 (1972) (support order for wife and child of $125 per week where husband received $245 per week).*fn5

Appellant contends finally that the lower court failed to consider appellee's earning capacity. The record belies this contention. Appellee testified that she needed to work at home because Matthew has cerebral palsy and that she had been unable to find in-home work. (N.T. December 17, 1981, at 14-15, 25-26). She also testified that when she previously worked outside the home, all of her income went towards paying the babysitter. (N.T. December 17, 1981, at 14-15, 25). We have stated that "[t]he hearing judge has the best opportunity to decide the facts since he observes the witnesses and can best pass on their credibility" and that his findings on credibility "should not be reversed by the appellate court unless there is a capricious disregard of competent evidence." Commonwealth ex rel. Powelson v. Powelson, 277 Pa. Superior Ct. 220, 221, 419 A.2d 741, 742 (1980). Here, the lower court considered the testimony and reasonably concluded that "[a]lthough Mrs. D'Arciprete possesses secretarial skills, she testified credibly as to her unsuccessful efforts to find typing work which she could perform at home." (Lower Court Opinion at 2).

Under these circumstances, we find appellant's contentions meritless and, therefore, must affirm the order of the lower court.

Affirmed.


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