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BRENDA SHUTTER v. THOMAS V. REILLY (03/14/88)

filed: March 14, 1988.

BRENDA SHUTTER, APPELLANT,
v.
THOMAS V. REILLY, APPELLEE



Appeal from the Order entered in the Court of Common Pleas of Indiana County, Civil Division, No. 564 DRS 1985

COUNSEL

Chere Winnek Shawer, Indiana, for appellant.

Brosky, Tamilia and Kelly, JJ. Tamilia, J. files concurring and dissenting opinion.

Author: Kelly

[ 372 Pa. Super. Page 253]

Appellant/mother raises this appeal from a trial court order granting appellee/father's petition to modify (reduce) his child support obligation. Appellant alleges the trial court erred by failing to use the appropriate county support guidelines in fashioning its award, and in excluding from the list of appellant's expenses mortgage, utility and automobile payments. We agree with appellant that the trial court erred in both instances. Accordingly, we vacate the order of support and remand this matter to the trial court for recomputation of the support award in accord both with the county guidelines and the formula set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

FACTS AND PROCEDURE

Appellant, Brenda L. Shutter, and the appellee, Thomas V. Reilly, were married in 1971 and divorced in 1984. Two children were born during the marriage; appellant retained custody of both children upon divorce. Appellee originally paid $1,000.00 monthly in child support pursuant to a property settlement agreement incorporated into the divorce decree.

[ 372 Pa. Super. Page 254]

This support provision was modified on March 12, 1986 pursuant to a consent order; appellee's monthly obligation was reduced to $500.00. That monthly amount was scheduled to increase to $600.00 commencing July 1987, and to $700.00 in January 1989.

One of the two children moved in with appellee sometime in the autumn of 1986. Appellee then filed, in November 1986, a petition for modification (reduction) of child support payments based upon this changed circumstance of the children's living arrangements. A hearing on the petition was held before the Domestic Relations officer on December 16, 1986, and an order was issued on December 18, 1986; this order reduced appellee's support obligation by one-half to $250.00 monthly. Appellant appealed this order and requested a hearing before the court. Pa.R.C.P. 1910.11(f). The hearing was held on January 13, 1987; the court issued its order on February 13, 1987 affirming the previously modified support order of $250.00 monthly. The court rather simplistically based its affirmance in part on the fact that appellant was supporting one child rather than both children. This appeal from that order was timely filed.

Appellant contends: (1) the trial court abused its discretion in setting the award of support without considering and making reference to the support guidelines of Indiana County; and (2) the court erred in refusing to consider the cost of housing, utilities and transportation as part of the necessary and reasonable expenses of raising a child. We agree with appellant with respect to both contentions and, therefore, we vacate the order of support, and remand to the trial court for proceedings consistent with this opinion.

I.

A.

At the outset, we note that there were material changes in circumstances which would justify modifying the support order. In a petition to modify a support order, the petitioner carries the burden of proving by competent evidence

[ 372 Pa. Super. Page 255]

    that a material and substantial change of circumstances has occurred since the entry of the original support order. Palmatier v. MacCartney, 365 Pa. Super. 300, 529 A.2d 518 (1987); Koller v. Koller, 333 Pa. Super. 54, 57, 481 A.2d 1218, 1220 (1984) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa. Super. 296, 430 A.2d 293 (1981)). The trial court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate whether the petitioner did or did not meet the burden of proof as to changed circumstances. Koller, supra, 333 Pa. Superior Ct. at 57-58, 481 A.2d at 1220; Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa. Super. 32, 457 A.2d 98 (1983). We agree with the trial court that appellee established a sufficient change in circumstances by reason of the fact that his son had moved in with him. Thus, reconsideration of the support order was appropriate. We note that appellant introduced evidence to demonstrate that her circumstances had also changed in that her household expenses had increased since entry of the consent order.

B.

We agree with appellant that the trial court abused its discretion in entering a modification of the support order based upon the established change in circumstances without referring on the record to the support guidelines promulgated by Indiana County. These guidelines, effective January 6, 1986, were formulated in response to 23 Pa.C.S.A. § 4322, which provides:

§ 4322. Support guidelines

The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to ...


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