filed: July 6, 1988.
CARL BRUCE FUNK, APPELLANT,
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.
Kenneth J. Sparler, York, for appellant.
William C. Gierasch, Jr., York, for appellee.
Cavanaugh, Olszewski and Popovich, JJ. Cavanaugh, J., files a concurring opinion.
[ 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. § 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 v. Boni, 302 Pa. Super. 102, 109, 448 A.2d 547, 550 (1982) (citations omitted); Commonwealth ex rel. Darling v. Darling, 300 Pa. Super. 62, 445 A.2d 1299 (1982)
[ 376 Pa. Super. Page 81]
support obligations is determined by their respective capacities to earn and abilities to pay. Bower, 536 A.2d at 427; DeWalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508, 510 (1987); DeMasi, 530 A.2d at 877; Fee, 496 A.2d at 796; Shindel, 504 A.2d at 356. A parent's ability to pay is determined by analyzing his or her actual and potential cash flow from financial resources, property interests, other investments and earning capacity. DeWalt, 529 A.2d at 510; DeMasi, 530 A.2d at 878-879; Shindel, 504 A.2d at 356. All direct and indirect income, from whatever source, is to be evaluated when determining a party's support obligation. Shindel, 504 A.2d at 356; Fee, 496 A.2d at 796 n. 6. Finally, "[t]here is no presumption that the father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal burden of financial support for the children. See Conway v. Dana, [456 Pa. 536] at 539, 318 A.2d  at 326 ." Bower, 536 A.2d at 427.
Instantly, the lower court, commenting on the mother's earning capacity, stated:
There was no evidence submitted to warrant the assignment of an earning capacity to the Wife and it is clear from the evidence that she did not have a job and her only prior experience was in a part-time capacity.
If the Court were to assign an earning capacity, it would not exceed a minimum wage rate or be in excess of the $430 per month that was awarded to her as Alimony Pendente Lite. (Memorandum Op. p. 4-5)
A cursory review of the record clearly indicates that the lower court completely disregarded that evidence which pertained to the mother's income and earning capacity. In a prior action for spousal support, the same lower court adopted the Master's Report and Recommendation on the Issues of Alimony Pendente Lite, Interim Counsel Fees, Costs and Expenses and awarded the mother $430.00 per month in Alimony Pendente Lite. Presently, the lower court reiterated that decision in the order before us. However, the lower court, in awarding child support, inexplicably
[ 376 Pa. Super. Page 84]
ignored the Master's prior finding that the appellee had an earning capacity of $640.00 per month (32 hours per week $$5.00 per hour). The court also ignored the appellee's prior testimony that she has an earning capacity of $5.00 per hour. Additionally, the lower court recognized that the appellee received monthly financial assistance from her parents but then erroneously refused to consider that aid as part of the appellee's income.*fn3
We are cognizant of the fact that the wife has not worked extensively outside the home. However, the appellant is a 1975 graduate of Duke University with a degree in Psychology. Obviously, the appellee has a greater earning capacity than "minimum wage" or "the $430 per month that was awarded to her as Alimony Pendente Lite." Since both parents share equally in the responsibility of child support according to their respective abilities, we find the lower court erred when it failed to assign the appellee an earning capacity and support obligation consistent with the evidence presented. See Bower, 536 A.2d 426, 427 (order obligating father to assume responsibility for greater share of child support is abuse of discretion when both parents are equally able to support their child.)
Further, we find that the lower court erred when it refused to allow the appellant to claim his children's day-care expenses as "support provided directly to the children" or as a portion of his reasonable living expenses. See Loring, 488 A.2d at 326 (trial court's disregard for parent's reasonable living expenses constitutes an abuse of discretion); DeMasi, 530 A.2d at 877; Riess, 510 A.2d at 1240-1241. The appellant desires to place his children in a day
[ 376 Pa. Super. Page 85]
care facility on the days which he has custody of the children and must work. However, the lower court did not believe this to be a reasonable expenditure and stated:
Curiously, the lower court's decision seems to be an effort to adopt the "nurturing parent doctrine" in this shared custody situation. In Com. ex rel. Wasiolek v. Wasiolek, 251 Pa. Super. 108, 380 A.2d 400 (1977), we applied the reasoning of the nurturing parent doctrine and determined that a custodial parent who stays at home and cares for a child does, in fact, support that child. The nurturing parent's services are valuable to the child and the non-custodial parent. Commenting on the "nurturing parent doctrine," we stated that:
Wasiolek, 380 A.2d at 402-403. See also Bender v. Bender, 297 Pa. Super. 461, 444 A.2d 124, 126 (1982); Stredny v. Gray, 353 Pa. Super. 376, 510 A.2d 359, 363 (1986).
[ 376 Pa. Super. Page 86]
Instantly, the record does not reflect that the lower court used a Wasiolek analysis prior to refusing to allow the appellant to claim reasonable day care expenses and suggesting that the appellee remain at home to care for the children. The children subject to this order are old enough to attend elementary school. Thus, except during the children's summer vacation, the mother would care for the children only several hours per day before the father left work and resumed custody. The appellant, who is also a custodial parent, wants the children to attend a respected day-care facility after school. Certainly, the trial court's discretion is not so broad as to allow the court to deny arbitrarily the custodial father's reasonable wishes regarding child care.
In addition, contrary to the court's opinion, allowing the appellee to care for the children "full-time" would not necessarily provide more money to both families since the appellee would be unable to work except on alternating weekends.*fn4 Consequently, the effect of the order is all but to eliminate the appellee's opportunities to earn income and increase her earning capacity. We believe that, if the appellee does pursue a career, it is entirely probable that all concerned will achieve a higher standard of living.
Moreover, the lower court cannot, through its support order, implement a de facto change in the parties' custody order. In effect, the lower court, because the appellant is gainfully employed, has ordered him to choose between two options he finds objectionable, either continue to pay the day-care costs without credit or allow an increase in the appellee's custody rights without an actual custody proceeding. Consequently, we find that the lower court clearly abused its discretion when it refused to allow the appellant
[ 376 Pa. Super. Page 87]
to claim child day-care costs as support given directly to his children or as a portion of his reasonable living expenses. See Marshall, 540 A.2d at 956 (trial court must consider expenses incurred by appellant in providing for child currently residing with him); Bower, 536 A.2d at 427 (father's sex cannot be weighed against him); Murphey v. Hatala, 350 Pa. Super. 433, 504 A.2d 917, 924 (1986), allocatur denied 516 Pa. 634, 533 A.2d 93 (1987) (parent's employment cannot be a factor weighed against him in a custody proceeding); Loring, 488 A.2d at 326 (reasonable living expenses must be allowed unless excessive or assumed to avoid child support).
Finally, we summarize our decision by stating that the court erred when awarding support by failing to follow the mandates of Melzer, supra, and failing to consider all factors relevant to an award of support. In Stredny, supra, we stated that "[w]here the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing." Stredny, 510 A.2d at 364, citing Pawol v. Pawol, 293 Pa. Super. 29, 437 A.2d 974 (1981). Accordingly, we remand for a full evidentiary hearing in pursuant to the provisions of this opinion.
Next the appellant alleges that the court erred in ordering him to remit to the appellee child support arrearages of $134.00 per week for the period in which Mrs. Funk removed the children from the jurisdiction in violation of court order. We find no error in the court's decision.
The law in Pennsylvania is well established that "[t]he right of a young child to support from its father 'is well nigh absolute.'" Com. v. Mexal, 201 Pa. Super. 457, 193 A.2d 680, 682 (1963); Com. ex rel. Firestone v. Firestone, 158 Pa. Super. 579, 45 A.2d 923 (1946); Kramer v. Kelly, 265 Pa. Super. 58, 401 A.2d 799, 803 (1979); Com. ex rel. Zercher v. Bankert, 266 Pa. Super. 595, 405 A.2d 1266, 1269 (1979). In Mexal, supra, we stated:
The duty to support children is not dependent upon custody of them. Even assuming that the mother improperly
[ 376 Pa. Super. Page 88]
removed the children from the defendant's home to another state, her misconduct in doing so cannot destroy the right of those children to support from their father. (citation omitted).
Mexal, 193 A.2d at 682.
An exception to the Mexal rule sufficient to relieve a father of his duty to pay child support occurs only when the evidence demonstrates that the mother has acted in an extremely improvident manner, well in excess of mere misconduct. See Com. ex rel. Chila v. Chila, 226 Pa. Super. 336, 313 A.2d 339 (1973); Zercher, 405 A.2d at 1269, explaining Chila, supra, and Com. ex rel. Shaffer v. Shaffer, 90 York Legal Record 130 (1976), affirmed per curiam 247 Pa. Super. 618, 373 A.2d 1142 (1977); Kramer, 401 A.2d at 803-804, distinguishing Chila, supra.
The circumstances in Kramer v. Kelly, supra, are almost identical to those currently before us. Therein, the mother removed her child from the court's jurisdiction without informing the court or the father of her and the child's whereabouts. Six months later, with the aid of a private investigator, the father was able to locate his child. During the period of the child's concealment, the father withheld the child support payments. Subsequently, we affirmed the lower court's order directing the father to pay the child support arrearages and stated:
It is an accepted principle that the misconduct of the mother does not affect a father's duty to support his child. Indeed, this duty is well nigh absolute, and a support order must ordinarily be complied with even if the actions of the wife place her in contempt of court. (citations omitted).
Kramer, 401 A.2d at 803.
Likewise we are not persuaded by the appellant that he is not obligated to pay the child support payments for the period the children were taken from the jurisdiction. While Mrs. Funk was held in contempt, we do not believe that her misconduct rose to the level of "extreme improvidence." Consequently, we hold that the appellant must pay the
[ 376 Pa. Super. Page 89]
arrearages and reiterate that "[a]bsent the extreme circumstances present in Chila, we are loath to deprive the child of support payments because of the improvident actions of the mother." Kramer, 401 A.2d at 804.
In conclusion, we find that the lower court erred when determining the parties' support obligations. The lower court failed to apply a child support formula and failed to explain adequately on the record the reasons for its allocation of parental support obligations. Further, the court erred when it did not determine the appellee's earning capacity and when it refused to allow the appellant's reasonable child day-care expenses. Consequently, we vacate that portion of the order which establishes the parties' support obligation and remand for additional proceedings in accordance with the provisions of this opinion. However, we affirm that portion of the order which directs the appellant to pay the child support arrearages.
CAVANAUGH, Judge, concurring:
I join in the opinion of the court and write separately only to comment upon that part of it which sets forth the standard of review for determining whether an abuse of discretion has occurred.
The majority acting with ample precedent, cites this court's decision in Fee v. Fee, 344 Pa. Super. 276, 279, 496 A.2d 793, 794 (1985), which in turn cites Boni v. Boni, 302 Pa. Super. 102, 109, 448 A.2d 547, 550 (1982), for the proposition that "[a]n abuse of discretion is not 'merely an error of judgment.'" The problem is that "not merely an error of judgment" may be read to practically foreclose appellate review. I take the phrase to mean that although the reviewing court might exercise its judgment in a different manner, if the record supports the judgment of the trial court, the appellate court must leave the judgment undisturbed. However, the oft repeated maxim is too easily recast and can take on what I believe to be an unintended meaning. See Straub v. Tyahla, 274 Pa. Super. 411, 414,
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A.2d 472, 474 (1980) ("an abuse of discretion is merely an error of judgment"). So fortified, an abuse of discretion standard becomes one in which a reviewing court must tolerate what it concludes to be a finding of error of judgment. While it is true that in applying the abuse of discretion standard on appeal the reviewing court must view the lower court's exercise of judgment in a less critical and more reluctant manner than ordinarily, it would not seem to admit of countenancing a decision which makes an error of judgment particularly in a matter such as the present which involves support of children.