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MARY JO REISINGER v. KEITH S. REISINGER (02/03/84)

filed: February 3, 1984.

MARY JO REISINGER, APPELLANT,
v.
KEITH S. REISINGER



No. 357 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 1256 January, 1981

COUNSEL

Morton B. DeBroff, Pittsburgh, for appellant.

June S. Schulberg, Pittsburgh, for appellee.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Brosky

[ 324 Pa. Super. Page 224]

This appeal is from an award of support ordering appellee, the former husband, to pay to appellant, the former wife, and their children. Appellant argues that the award should have been allocated. She also contends that, as an award unallocated as to child support and alimony pendente lite, it should have been based on appellee's gross, rather than net, income. On the first issue, we find that the court below did not err. As to the second issue, we find that there was an improper computation of the award and vacate and remand for computation.

I.

The first issue presented by appellant is whether the court below erred in not allocating the award into child support and alimony pendente lite portions. She points out that in this unallocated form the total amount of the award is subject to her federal income tax; and the total amount of the award is not subject to his federal income tax. 26 U.S.C. ยงยง 71(a), (b). Had the award been allocated, she would only have to pay income tax on the alimony portion; while her former husband would have to pay the taxes on the child support portion.

The court below acknowledged that this would have that tax effect. Indeed, it states that this was precisely the reason the award was not allocated.

[ 324 Pa. Super. Page 225]

Certainly Wife is aware, or at least her counsel should be, that income tax in this nation is levied in a progressive fashion. In other words, the more you make, the larger the percentage of tax paid. The effect of this order is to increase the total income available to this family unit, severed though it is, and to pass the tax savings on to the children in the form of increased support. By not allocating this order, this court permits all of Husband's payments to Wife to be considered alimony as defined by Sections 71(a)(3) and 215 of the Internal Revenue Code. The effect thereby is to halve Husband's income, the only income for this family, causing each part to be taxed at a much lower percentage than the whole would be. Had this not been done, this court would have had to order a substantially smaller amount for alimony pendente lite and child support.

This Court has repeatedly sanctioned the non-allocation of awards for the above-stated reason. Commonwealth ex rel. Kunkin v. Bruck, 297 Pa. Super. 410, 443 A.2d 1187 (1982); Commonwealth ex rel. Stanley v. Stanley, 198 Pa. Super. 15, 179 A.2d 667 (1962); Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa. Super. 93, 369 A.2d 309 (1976). While Pa.R.Civ.P. 1910.16 permits the allocation of an award, such allocation is not required.*fn1

We conclude that the court below did not err in not allocating the award into child support and ...


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