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CARL BRUCE FUNK v. MARGARET LOUISE FUNK (07/06/88)

filed: July 6, 1988.

CARL BRUCE FUNK, APPELLANT,
v.
MARGARET LOUISE FUNK, APPELLEE



Appeal from an order of the Court of Common Pleas, York County, entered at No. 869 SA 1986, Domestic Relations No. 35636.

COUNSEL

Kenneth J. Sparler, York, for appellant.

William C. Gierasch, Jr., York, for appellee.

Cavanaugh, Olszewski and Popovich, JJ. Cavanaugh, J., files a concurring opinion.

Author: Popovich

[ 376 Pa. Super. Page 78]

This is an appeal from a child support order entered by the York County Court of Common Pleas. The appellant alleges that the lower court abused its discretion when determining the amount of support to be paid. Specifically, Mr. Funk questions: 1) Whether the court erred by failing to comply with the support guidelines enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) and codified in 23 Pa.C.S.A. ยง 4322; and 2) Whether the court erred by failing to consider the earning capacity of the mother and the child care expenses of the father when determining the support award. Additionally, the appellant alleges that the court erred by requiring him to pay child support arrearages for the period when the appellee removed the children from Pennsylvania. After reviewing the record and the parties' brief, we vacate the support order in part, remand the case for additional evidentiary hearings prior to final adjudication of the parties' support obligations, and we affirm that portion of the support order which directs the appellant to pay the arrearages.

The record reveals that C. Bruce Funk and Margaret L. Funk were married on September 8, 1977. Two children were born during their marriage: Jessica Funk, born May 26, 1980, and Kevin Funk, born September 4, 1982. The parties to this action are now divorced, although issues pertaining to the divorce are currently pending.

When the couple first separated in 1986, Mrs. Funk was temporarily awarded primary physical custody of her children. On July 28, 1986, a temporary child support order was entered directing Mr. Funk to remit $134.00 per week for the support of his children. Mr. Funk made regular child support payments until September 4, 1986, when Mrs. Funk, in violation of the temporary custody order, removed the parties' two children from the court's jurisdiction without notifying the appellant, the York County Domestic

[ 376 Pa. Super. Page 79]

Relations Office or her attorney of her and the children's whereabouts. During the period in which the children's whereabouts were concealed, Mr. Funk discontinued payment of the child support. Six weeks later, Mrs. Funk returned to York County with the children, and, on October 17, 1986, a contempt/custody proceeding was held. The appellee was found in contempt and was given a suspended sentence of ninety (90) days in jail. In addition, the court entered a new temporary custody order awarding Mr. Funk primary physical custody of his children. On October 28, 1986, the court suspended Mr. Funk's obligation to make support payments since physical custody of his children had been transferred to him.

On May 5, 1987, a consent order was entered by the York County Court of Common Pleas establishing joint physical custody of the children. Pursuant to the custody order, a schedule has been implemented whereby each party enjoys physical custody of the children approximately seven (7) days out of a fourteen (14) day period.*fn1

On August 5, 1987, the support hearing was held, and an order was entered directing that: 1) Mr. Funk pay to Mrs. Funk arrearages of $135.00 per week for the period when Mrs. Funk had left the jurisdiction with her children; 2) Mr. Funk was not obligated to pay child support during the period he was the children's primary physical custodian; and 3) During the period of joint physical custody, i.e., from

[ 376 Pa. Super. Page 80]

May 5, 1987, until the present, Mr. Funk must remit $95.00 per week to Mrs. Funk for child support until further order. Mr. Funk appeals from the August 5, 1987, court order.

Instantly, the appellant alleges that the lower court abused its discretion when determining the amount of his support obligation. After careful consideration, we agree with the appellant. When reviewing the lower court's decision, our duty is to insure that the lower court's support order is fair, not confiscatory, allows for the parents' reasonable living expenses, and is consistent with the parents' and children's "station in life" and "customary standard of living." Bower v. Hoover, 370 Pa. Super. 321, 536 A.2d 426, 427 (1988); Fee v. Fee, 344 Pa. Super. 276, 496 A.2d 793, 796 (1985); Shindel v. Leedom, 350 Pa. Super. 274, 504 A.2d 353, 356 (1986); Com. ex rel. Loring v. Loring, 339 Pa. Super. 92, 488 A.2d 324, 325 (1985). Additionally, we are mindful that the lower court's paramount concern while making support determinations should be the protection of the best interest of the children. Michael v. Michael, 360 Pa. Super. 312, 520 A.2d 473, 475 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431; Gerber v. Gerber, 337 Pa. Super. 580, 487 A.2d 413, 414 (1985). In Fee, 496 A.2d 793, Judge Beck restated the standard of review applicable in child support cases:

On appeal, a trial court's child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Commonwealth ex rel. Robinson v. Robinson, 318 Pa. Super. 424, 465 A.2d 27 (1983); Downie v. Downie, 314 Pa. Super. 548, 461 A.2d 293 (1983). An abuse of discretion is not "'merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by evidence on the record, discretion is abused.'" Boni ...


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