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JUDITH AKERS v. JEROME AKERS (02/16/88)

filed: February 16, 1988.

JUDITH AKERS, APPELLEE,
v.
JEROME AKERS, APPELLANT



Appeal from the Order of the Court of Common Pleas, Family Division, of Allegheny County, No. FD542-72.

COUNSEL

Verdell Dean, Pittsburgh, for appellant.

Paul Kutcher, Pittsburgh, for appellee.

Cirillo, President Judge, and Johnson and Montgomery, JJ. Cirillo, President Judge, files a dissenting opinion.

Author: Per Curiam

[ 373 Pa. Super. Page 2]

This is an appeal from an order reducing appellant's support obligation for the two minor children of his first marriage. Finding no error in the proceedings below, we affirm.

[ 373 Pa. Super. Page 3]

This case began in 1972 with a support order of $150.00 per month for appellee and one child. Subsequent modifications were made when the second and third children were born and in 1985 when the first child reached the age of 18. By this time, the support order included only the children. On February 28, 1986, appellee filed a petition for an increase alleging that appellant had income from a second job which he had concealed. The Hearing Officer recommended an order of $450.00 per month plus $75.00 on arrearages of $8,385.00. Appellant filed exceptions which were dismissed and an order was entered adopting the recommendation of support, but lowering the arrearages to $7,500.00. Appellant did not appeal this order.*fn1 Subsequently, appellant filed a petition to modify the support order alleging that he had quit his second job. Shortly thereafter, appellant was laid off from his primary job and he filed a second petition to modify. The petitions were consolidated for hearing. The Hearing Officer recommended that the order be reduced to $300.00 per month plus $150.00 on arrears of $7,501.00. Appellant's exceptions were denied and an order adopting these recommendations was entered on December 19, 1986. This timely appeal followed.

The standard of review of a support order is a narrow one. We defer to the order of the trial court unless there is a clear abuse of discretion. An abuse of discretion is not merely an error of judgment. Only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence is discretion abused. Butler v. Butler, 339 Pa. Super. 312, 488 A.2d 1141 (1985).

[ 373 Pa. Super. Page 4]

We cannot, of course, usurp the trial court's function as fact finder. Semasek v. Semasek, 331 Pa. Super. 1, 479 A.2d 1047 (1984). Under this standard, we will therefore address appellant's contentions.*fn2

Appellant first complains that the hearing court erred by failing to consider evidence that he was unable to continue to work at his second job. We cannot agree. Clearly, the trial court did consider the evidence presented by appellant. Just as clearly, however, the trial court did not believe appellant's testimony that he quit this job due to health reasons. It is well-settled that the finder of fact may accept or reject all or any portion of a witness's testimony. Commonwealth ex rel. Lutz v. Lutz, 298 Pa. Super. 473, 444 A.2d 1281 (1982). Such a decision is clearly within the discretion of the trial court and we are without power to substitute our credibility determination for that of the trial court. Semasek v. Semasek, supra.

Appellant next complains that the trial court erred in imputing an earning capacity to appellant rather than basing the support order on actual income. Of course, the general rule is that it is the earning capacity, not the actual earnings, of the parent which is the determinative factor in ascertaining the ability to pay support. Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976). Unless appellant fits into an exception to this general rule, we cannot say that the trial court abused its discretion. Appellant argues that his situation should be considered under the exception that determines support by actual earnings in situations where income is reduced involuntarily, i.e., through ...


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