NO. 3324 PHILA. 1981, Appeal from the Order in the Court of Common Pleas of Luzerne County, Civil No. 560 of 1979
Joseph J. Yeager, Wilkes-Barre, for appellant.
Lawrence D. MacDonald, Wilkes-Barre, for appellee.
Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.
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This appeal is from an order entered on a petition that appellant be held in contempt for failing to comply with a child support order. The trial court did not hold appellant in contempt but ordered that part of the proceeds due appellant from the sale of entireties property be used to satisfy appellant's arrearages, and further, that the remainder of the proceeds be put into an escrow account to guarantee future payments on the support order. Appellant argues that in entering the order the trial court abused its discretion because, among other reasons, the court did not consider appellant's ability to pay support and the change in appellant's circumstances. We agree, and therefore remand for further proceedings consistent with this opinion.
The support order from which this appeal arises was issued on October 8, 1980, on the basis of an agreement by the parties. The order provided that appellant should pay $140 bi-weekly to appellee for the support of their two minor children, $10 bi-weekly on arrears due appellee, and $5 bi-weekly on arrears due the Department of Public Welfare. According to the testimony of a Miss Iorio, given at the contempt hearing, the terms of the order were based on appellant's sole source of income of $227 per week in workman's compensation benefits. (Transcript at 1)*fn1
On December 30, 1980, appellant claims, his benefits were discontinued after an insurance company doctor found him
[ 335 Pa. Super. Page 553]
to be physically capable of returning to his job as a truck driver. This claim was supported by Miss Iorio, who testified that she had received an affidavit from the P.M.A. Insurance Company to the effect that appellant's benefits had been discontinued on December 30, 1980. (Transcript at 1) Appellant asserted that he still was unable to work, and indicated that a report from a Doctor Groblewski would show this. (Transcript at 6) However, neither the insurance company affidavit nor the doctor's report is part of the record.
Appellant did not file a petition to modify the support order after his benefits were discontinued. At no time during the course of the proceedings against him, in fact, has appellant challenged the amount of support he was required to pay under the October 8 support order. Instead, in January 1980, he simply stopped paying all child support. (Testimony of Miss Iorio, Transcript at 1)
On May 7, 1981, appellee petitioned the trial court to hold appellant in contempt for non-payment of support. On October 1, 1981, the court scheduled a hearing on the petition and so notified appellant.*fn2
The contempt hearing was held on November 20, 1981. Appellee's attorney was present, as was the Commonwealth's attorney representing the Department of Public Welfare. Appellant was unrepresented. At several times during the course of the hearing, appellant referred to his absent attorney.*fn3 Early in the hearing, when questioned by the trial court regarding the resources he had available to
[ 335 Pa. Super. Page 554]
satisfy the substantial arrearages that had accumulated since January 1980, appellant noted that appellee had placed a $5,000 lien upon their jointly-owned home. The following colloquy ensued:
THE COURT: How do you know it's [the lien is] there?
MR. RITTEL: It's in the courthouse. My attorney knows about it.
THE COURT: Who is your ...