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BARBARA A. BUTLER v. ELWIN M. BUTLER (02/21/85)

filed: February 21, 1985.

BARBARA A. BUTLER, APPELLEE,
v.
ELWIN M. BUTLER, APPELLANT



NO. 01062 PHILADELPHIA 1983, Appeal from the Order dated March 18, 1983, in the Court of Common Pleas of Tioga County, Family Division, at No. 268 Family Section, 1982.

COUNSEL

Ronald C. Travis, Williamsport, for appellant.

James T. Rague, III, Mercer, for appellee.

Cavanaugh, Beck and Tamilia, JJ.

Author: Beck

[ 339 Pa. Super. Page 315]

This appeal from a child support order raises two issues: (1) whether in calculating appellant father's financial resources for child support, a court may include annuity payments he receives from a tort action award ("tort award") and (2) whether the instant support award is excessive. We affirm the order of the lower court.

Our scope of appellate review in support proceedings is narrow.

[A]bsent a clear abuse of discretion, we will defer to the order of the lower court . . . . 'A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence . . . .' '[I]f, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.'

Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa. Super. 32, 38-9, 457 A.2d 98, 101-02 (1983) (citations omitted) (footnotes deleted).

Appellant argues that the entire tort award may not be considered an income source for child support because it represents not only replacement for income but also compensation for pain and suffering. Appellant concedes, however, that the portion of the tort award intended as compensation for lost income is includable as an income source for child support. The unresolved question then is whether that portion of the tort award intended as compensation for pain and suffering is also includable as an income source

[ 339 Pa. Super. Page 316]

    for child support. We hold that the entire tort award shall be considered as an income source for child support.

Citing Witherow v. Witherow, 288 Pa. Super. 519, 432 A.2d 634 (1980), appellant father argues that a parent's financial resources for child support should be computed exclusively from the parent's earnings or replacement for lost earnings. He concedes that in Witherow the court held that a lump-sum workers' compensation award constituted a financial resource for child support. Appellant, however, maintains that Witherow is distinguishable from the case sub judice on the ground that the workers' compensation award in ...


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