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MICHOL LEA LEASURE v. JAMES PAUL LEASURE (07/05/88)

submitted: July 5, 1988.

MICHOL LEA LEASURE
v.
JAMES PAUL LEASURE, APPELLANT



Appeal from the Order of the Court of Common Pleas, Erie County, Family Division, at No. NS 830357.

COUNSEL

John H. Moore, Erie, for appellant.

Marilyn Woolery, Assistant District Attorney, Erie, for appellee.

Brosky, Johnson and Watkins, JJ. Johnson, J., files a dissenting opinion.

Author: Brosky

[ 378 Pa. Super. Page 614]

This is an appeal from an order entered by the trial court denying appellant's petition for modification or suspension of child support payments during the period of appellant's incarceration.

The issue currently before this court is: whether the trial court erred in refusing to suspend and/or modify the order of support. We respectfully reverse the decision of the trial court and remand this case with instructions.

[ 378 Pa. Super. Page 615]

An appellate court will not overturn a support order entered by the trial court absent an abuse of discretion. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa. Super. 93, 369 A.2d 309 (1976). However, we must bear in mind that we have before us a case of first impression at the appellate level. Thus, the learned trial judge, while wrestling with this decision, had no appellate authority upon which to rely for guidance.

Appellant, through his attorney, appeared before the trial court on October 27, 1987, for a hearing on his petition to suspend the previously entered child support order. That order had directed appellant to pay $16.70 per week in child support for his minor child.

Appellant based his request for suspension of child support payments on his incarceration. He had been sentenced on August 4, 1987 to one to two years imprisonment for crimes unconnected to his support obligation.

Child support orders may be modified only when evidence produced at a hearing establishes a substantial change in circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa. Super. 507, 473 A.2d 183 (1984). Further, the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification. Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa. Super. 283, 406 A.2d 805 (1979). Thus, the burden is on appellant to prove a material change of circumstances.

The trial court, in denying appellant's request for suspension/modification, reasoned that, not only is incarceration an act not sufficiently "permanent" to allow for modification, see Jaskiewicz, supra., but also, that because it was appellant's voluntary act which put him behind bars, it is a situation analogous to a parent voluntarily reducing his salary to avoid paying support. See, Wing v. Wing, 338 Pa. Super. 516, 488 A.2d 11 (1985). We disagree.

While it is true that case law has stated that the record must show a "permanent change in . . . circumstances", see,

[ 378 Pa. Super. Page 616]

    a modification provides no present benefit to the child. Imposing upon the incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child. Rather, it simply adds to an accumulating burden which falls upon the parent when he is least able to bear it.

This same idea has been espoused by other jurisdictions who have refused to force an incarcerated parent to pay support unless that parent possesses another asset from which funds could be generated. Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983) (Father had equity in a house to be used to provide support for his children); Foster v. Foster, 471 N.Y.S.2d 867, 99 A.D.2d 284 (1984) (Support payments suspended even where father had equity in a home, since court would not force wife to sell the home to meet father's obligation); Matter of Edmonds, 53 Or.App. 539, 633 P.2d 4 (1981). (Parent is not liable for payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments).

With regard to appellant's assets, the following exchange took place:

MR. MORTON: Do we know what other asset he might have, Judge, that would ...


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