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LYNDA BABISH v. JOHN A. BABISH (02/25/87)

filed: February 25, 1987.

LYNDA BABISH, APPELLANT,
v.
JOHN A. BABISH



Appeal from the Order Entered on May 9, 1986, in the Court of Common Pleas of Cambria County, Civil Division, at No. DR 128-84.

COUNSEL

Kevin J. Rozich, Ebensburg, for appellant.

Andrew D. Gleason, Johnstown, for appellee.

Watkins, Cercone and Hester, JJ.

Author: Hester

[ 361 Pa. Super. Page 119]

Appellant, Lynda Babish, and appellee, John Babish, were divorced on January 15, 1985. The parties had four children. On February 7, 1984, appellant filed a complaint for child support. The Cambria County Court of Common Pleas ordered appellee to pay $175.00 per month support.

A status conference was held on August 5, 1985, at which time appellee was paying support of $175.00 per month for two children still living with appellant. On August 20, 1985, appellee filed a petition to decrease support, asserting he was earning less money because his workers' compensation benefits had been terminated, he had secured employment, and he was earning less than he had received for his disability. Appellant's brief at 4. Another conference was held on September 17, 1985. At this conference, counsel for

[ 361 Pa. Super. Page 120]

    appellant asked appellee if he had received a lump sum workers' compensation award, and appellee specifically denied receiving such an award.*fn1 The court reduced the support order from $175.00 to $140.00 per month on September 20, 1985. On November 7, 1985, appellant filed a petition to increase support, asserting that appellee had received a lump sum workers' compensation award. A hearing was held on December 12, 1985, before a hearing officer.

Due to the significance of the misrepresentation to the court, another hearing was held before a permanent hearing officer on January 7, 1986. Appellee admitted that he had lied about receiving the $26,000.00 workers' compensation award, N.T., 1/7/86, at 23, but declared that he had spent the money to purchase a house. Based on this testimony, the permanent hearing officer determined that the previous reduction of appellant's obligation of support to $140.00 per month had been proper. He recommended, however, that appellee pay an additional $60.00 per month on arrearages. Following oral argument, the Honorable Caram Abood dismissed appellant's exceptions to the permanent hearing officer's findings of fact and recommendation. This appeal followed.

Appellant asserts that the court erred in failing to consider the $26,000.00 lump sum workers' compensation award in determining appellee's ability to pay child support. We agree.

[ 361 Pa. Super. Page 121]

Our scope of review in support proceedings is narrow. Absent a clear abuse of discretion, we will defer to the order of the trial court. Jaskiewicz v. Jaskiewicz, 325 Pa. Super. 507, 473 A.2d 183 (1984). However, "if . . . 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 Page 121} rel. Scanlon v. Scanlon, 311 Pa. Super. 32, 39, 457 A.2d 98, 102 (1983) (citations omitted). Further, we have held that, before entering a child support order, the trial court "should consider the ...


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