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CHRISTOPHER DEWALT v. DUANE DEWALT (07/29/87)

filed: July 29, 1987.

CHRISTOPHER DEWALT
v.
DUANE DEWALT, APPELLANT



APPEAL FROM THE ORDER ENTERED OCTOBER 6, 1986 IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, FAMILY NO. 775 DR OF 1986

COUNSEL

Thomas C. Panian, Robert Clarke, Washington, for appellant.

Clayton G. Nestler, Washington, for appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ. Montemuro, J., concurs in result.

Author: Cirillo

[ 365 Pa. Super. Page 282]

This is an appeal from an order of the Court of Common Pleas of Washington County attaching the wages of appellant, Duane DeWalt.

[ 365 Pa. Super. Page 283]

Christopher DeWalt filed suit against his father, Duane DeWalt, for child support. The trial court ordered the father to pay $100 per month and attached his wages for that purpose. He then appealed to this court.

The court order which attached DeWalt's wages is dated October 6, 1986. It was entered on the docket that same day but DeWalt did not file a notice of appeal until November 6, thirty-one days after entry of the order. Pa.R.A.P. 903 provides that an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Rule 108(b) defines the date of entry of an order in a matter of this kind as "the day on which the clerk makes the notation in the docket that notice of entry of the order has been given. . . ." See Lyday v. Lyday, 360 Pa. Super. 16, 19, 519 A.2d 967, 969 (1986) (court held that the thirty-day appeal period begins to run when notice of the court's order is mailed to the parties). In this case, notice of the October 6th order was mailed on October 14. Therefore, the appeal of November 6 was within thirty days and was proper.

Appellant presents three issues for our review: (1) whether the support order imposes an undue hardship upon him; (2) whether the order is based upon erroneous information; and (3) whether the case must be remanded for clarification of the trial court's order.

On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. Kopp v. Turley, 359 Pa. Super. 106, 109, 518 A.2d 588, 590 (1986). An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment. Id., 359 Pa. Superior Ct. at 109, 518 A.2d at 590.

[ 365 Pa. Super. Page 284]

The legal standard which controls a parent's obligation to pay child support varies based upon the child's age. A parent has a stringent obligation to support a child aged 18 or less. Sutliff v. Sutliff, 339 Pa. Super. 523, 547, 489 A.2d 764, 776 (1985). Child support is the shared responsibility of each parent. Leonard v. Leonard for and Page 284} on Behalf of Leonard, 353 Pa. Super. 604, 608, 510 A.2d 827, 829 (1986). This does not mean that each parent must pay an equal amount. They must discharge their obligation in accordance with their individual capacity and ability. Id., 353 Pa. Superior Ct. at 609, 510 A.2d at 829.

In order to calculate the support obligation of each parent, the court must first determine the reasonable needs of the children. Reitmeyer v. Reitmeyer, 355 Pa. Super. 318, 324, 513 A.2d 448, 452 (1986). Reasonable expenses are not limited to the bare necessities. A child is entitled to a reasonable standard of living based upon the social station, fortune and financial achievements of their parents. Commonwealth ex rel. Stump v. Church, 333 Pa. Super. 166, 172, 481 A.2d 1358, 1361 (1984).

The court must next determine the respective abilities of the parents to support their children. To arrive at this amount, the court must make an allowance for the reasonable living expenses of each parent. The court must then calculate the parent's net income or earning capacity if that figure differs from actual income. Lyday at 21, 519 A.2d at 970. The trial court must consider every aspect of a parent's financial ability to pay support. The actual and potential cash flow from his property interests, financial resources, stock holdings and other investments should all be considered. Id.

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a plurality of our Supreme Court, per Justice Larsen, established guidelines for the calculation of child support awards. Id., 505 Pa. at ...


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