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filed: June 4, 1986.


Appeal from the Order dated and entered March 22, 1985 of the Court of Common Pleas of Luzerne County, Domestic Relations Section No. 2007 of 1979.


Joseph J. Savitz, Wilkes-Barre, for appellee.

Rowley, Montemuro and Kelly, JJ. Rowley and Montemuro, JJ., concur in the result.

Author: Kelly

[ 353 Pa. Super. Page 377]

This appeal is from an order modifying an existing support order and directing appellant to pay the sum of $4,255.00 representing one-half of school expenses of the minor daughter for the 1983-84 school term, plus arrearages under a pre-existing support order. For the reasons stated below, we affirm.

The facts of this case, as presented to the Domestic Relations Master, hereinafter the Master, and affirmed by the lower court, are as follows. The parties were married in 1971, and were subsequently divorced in 1974. Both have since remarried other persons. There was one child born of the marriage, Darrah, who is the subject of this support modification dispute. Appellant/father now has a stepdaughter by reason of his remarriage, and appellee/mother has a second daughter by her present spouse, a chiropractor. Darrah resided with appellee until June 10, 1984 when she began residing with appellant.

Darrah was placed by appellee, the custodial parent, in a private school for emotionally disturbed children for the 1983-84 school term. The school tuition is $8,500 per school year. Appellee, on October 12, 1983, filed a petition for modification of the existing support order so that appellant would contribute to the tuition payments; appellant, on the same day, filed a request for reduction of the existing support order which mandated payment of $40.00 a week

[ 353 Pa. Super. Page 378]

    during periods of appellant's employment, and $15.00 a week during periods when appellant collected unemployment compensation.

Appellee, after the birth of Darrah, worked at the Perkin-Elmer Corporation and earned $30,000 annually. She quit that job at the birth of her second child. Appellee now operates a business at a flea market three days a week. Appellee's gross income from this business was approximately $7,000 in both 1982 and 1983. Appellee's decision not to return to full-time work after the birth of her second child was based on a fear that her second child would develop emotional problems, as had her first.

Appellant/father, a college graduate, is seasonally employed in his father's business, the Dallas Nursery, as a horticulturalist. From November through April appellant collects unemployment compensation. Appellant testified that his combined income sources totaled approximately $11,000 in 1983 (R. at 52a). Appellant pays the mortgage on his home which is built on his father's property; his father cosigned the loan for the home. (R. at 51a). Appellant testified that in the future his home will be free of the mortgage debt. Furthermore, he will own one-half of his father's business; his brother will own the other half (R. at 57a). Appellant's present wife is unemployed and receives $40.00 weekly for support of her child by a previous marriage.

The record also discloses the following facts, the implications of which bear directly on the lower court's holding in this action. Appellant was able to borrow money from a local bank to finance alterations and additions to his home; appellant gave no collateral for the $15,000 he borrowed. Appellant's attorney characterized this loan as a mortgage but the record supports the Master's finding that the loan was in fact unsecured (R. at 60a). Appellant listed his monthly expenses, including Darrah's weekly support payments, as being $1,481.80 monthly or approximately $17,780 annually (R. at 103a). This amount clearly exceeds his alleged annual income of $11,000. Appellant admitted on

[ 353 Pa. Super. Page 379]

    cross-examination that he and his wife had recently travelled to Florida; he refused to characterize the trip as a vacation but said it was conducted in pursuit of his wife's family business. Appellant does not own a car but has full use of the car owned by his father's business. Appellant had a documented history of being in arrears for his support payments; for example, at the time of the March 10, 1984 hearing before the Master, appellant owed $1,045 in support payments (R. at 27-28a).

Darrah's annual expenses calculated from March 1983 to March 1984 totaled $14,844, including the $8,500 tuition payment, or $6,344 excluding tuition (R. at 31a). Appellant during this year had contributed only $200 of his total obligation (R. at 28a) of $1,245 (R. at 27a). Appellee, in addition to paying Darrah's expenses and tuition, maintained payments for all Darrah's health and life insurance; Darrah had a kidney removed at age 5 and consequently has special medical considerations (R. at 32a).

Appellee stated she consulted appellant about her decision to enroll their daughter in private school (R. at 28a-29a). Appellant agrees with appellee that their daughter is emotionally disturbed and that the school was "a good idea." (R. at 62a). Appellee further testified, and was not contradicted by appellant, that appellant visited the private school in New Hampshire and approved of it (R. at 14a). Appellant assumed his support payments would be used as part payment of the tuition (R. at 21a).

Appellee also stated, again without contradiction, that appellant's present wife and her parents as well as appellant's own parents volunteered to contribute to Darrah's tuition and expenses but "Nicky's (appellant's) answer was 'No', that's not their responsibility . . . . it's my responsibility." (R. at 35a and 36a).

The Master found that, based on appellant's ability to secure a loan without collateral, and the other factors cited above, the appellant had access to funds beyond those appellant disclosed to the Master. The Master concluded it

[ 353 Pa. Super. Page 380]

    was not unreasonable, therefore, to order appellant to pay one-half of the child's tuition expenses.

Upon review of the Master's report, the Honorable Hourigan, P.J., entered an order incorporating the Master's findings, dismissing appellant's exceptions thereto, ...

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