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COMMONWEALTH PENNSYLVANIA EX REL. SHERYL B. BANKS v. DAVID BANKS. APPEAL SHERYL B. BANKS (07/27/84)

filed: July 27, 1984.

COMMONWEALTH OF PENNSYLVANIA EX REL. SHERYL B. BANKS
v.
DAVID BANKS. APPEAL OF SHERYL B. BANKS, APPELLANT



No. 2945 PHILADELPHIA, 1981, Appeal from an Order in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 76-04113.

COUNSEL

Warren L. Soffian, Philadelphia, for appellant.

Samuel B. Brenner, Philadelphia, for appellee.

Hester, Cavanaugh and Brosky, JJ. Cavanaugh, J., notes his dissent.

Author: Hester

[ 330 Pa. Super. Page 130]

Appellant, Sheryl B. Banks, and appellee, David Banks, were married on November 5, 1967. One child, Amy, was born of the marriage and resides with appellant. The parties were divorced from the bonds of matrimony in November, 1977.

On April 13, 1977, the parties agreed that appellee was to pay $125.00 per week for the support of Amy. An Order of Court was entered pursuant to this agreement. On December 6, 1977, appellee filed a Petition to Reduce the support payments and appellant responded with a Petition for Increased Payments, a Petition for Attachment and a Petition to Reduce Arrearages to Judgment.

Following a hearing on February 5, 1979, the court granted appellee's petition and reduced child support payments from $125.00 to $75.00 per week. Appellant appeals from that order. This appeal is before us for the second time.

In Banks v. Banks, 275 Pa. Super. 439, 418 A.2d 1370 (1980), this Court concluded that the lower court abused its discretion in granting appellee's Petition to Reduce the support payments. The lower court there erred in placing

[ 330 Pa. Super. Page 131]

    the burden of proof on appellant and in issuing an order unsupported by the evidence. Despite our holding in Banks, supra, we did not determine the amount of support that was justified under the circumstances. Instead, due to the inadequacy of the record, we remanded for a further hearing to be conducted according to the principles discussed therein "and in the further expectation that if another appeal is taken, we shall have the benefit of an opinion in which the lower court evaluates such conflicts as the evidence may present, and explains how it reached its conclusion." Id., 275 Pa. Superior Ct. at 450, 418 A.2d at 1376.

On October 19, 1981, a hearing was conducted by the lower court pursuant to our remand. The parties agreed, with the lower court's reluctant approval, to have the matter resolved primarily from the record established at the first hearing on February 5, 1979. They proceeded, however, to take further limited testimony from both parties concerning appellee's 1977 federal income tax return.

In accordance with this Court's request for an explanation of its findings on remand, the lower court set forth the following bases for again granting ...


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