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KATHLEEN JACKMAN v. ANTHONY D. PELUSI (09/21/88)

filed: September 21, 1988.

KATHLEEN JACKMAN, APPELLANT,
v.
ANTHONY D. PELUSI



Appeal from the Order entered October 27, 1987, Court of Common Pleas, Chester County, Civil Division at No. 166 N. 1986.

COUNSEL

David H. Moskowitz, Wayne, for appellant.

David S. Kaplan, Pottstown, for appellee.

Montemuro, Tamilia and Johnson, JJ.

Author: Johnson

[ 379 Pa. Super. Page 365]

This is an appeal from an order reducing child support arrearages. We reverse and remand.

Following the parties' divorce, Kathleen Jackman, [Wife] gained custody of their four children. A support order was entered on May 25, 1967 in the Court of Common Pleas of Delaware County and was increased by order dated December 14, 1973 to the amount of $80.00 per week, twenty dollars a week per child. Anthony Pelusi [Husband] paid no child support after entry of this order. By August 1974 arrearages amounted to $2,495.00. Husband never petitioned for modification of the support order. Throughout 1974 Wife applied to the courts to obtain enforcement of the support order until she could no longer afford legal fees. Bench warrants were issued without effect and apparently were never enforced as arrearages continued to accrue. The Delaware County court placed the case on inactive status in 1976. In 1985 some of the children sought out Husband and resumed contact with him. Husband paid their college tuition, paid for airline tickets to his home and bought cars for them.

On February 3, 1986 Wife transferred the Delaware County support order to Chester County, Husband's county of residence, by means of an inter-county order of registration. The arrearages on the order certified from Delaware County inclusive through December 27, 1985, totaled $46,015.00.

Husband filed a petition to terminate the order and remit arrearages. Following a hearing, the Hearing Officer recommended that arrearages be modified to $29,257.66 based upon the fact that arrearages should not have accrued after each child's eighteenth birthday, when each child became independent. Both parties filed exceptions to the Hearing Officer's recommendations. By opinion and order of October

[ 379 Pa. Super. Page 36627]

, 1987 the Honorable Alexander Endy further reduced the arrearages to $4,895.00. This appeal followed.

Wife argues that the trial court incorrectly and unfairly evaluated the factors that determined its reduction of the Hearing Officer's recommendation for arrearages. After reviewing and accepting the Hearing Officer's determination for existence and amount of arrearages through December 27, 1985, the trial court wrote:

It seems to me that imposing the full liability on [Husband] at this time is punitive in light of all that has transpired. [Wife] should not be unjustly enriched by [Husband's] present ability to pay an obligation fixed by agreement of the parties fourteen years ago and disregarded by both parties for almost ten years, without regard to intervening circumstances.

Opinion, 10/27/87, at 9. The trial court then decided that, based on these "cognizable equities," Husband's obligation should terminate on March 21, 1975, the date Wife filed the petition for name change, the "final affirmative action" by Wife. Opinion, 10/27/87 at 10.

On appeal, a child support order will not be disturbed absent an abuse of discretion, either by a misapplication of law or by an unreasonable exercise in judgment. Scheidemantle v. Senka, 371 Pa. Super. 500, 538 A.2d 552 (1988). An abuse of discretion:

     does not necessarily imply a willful abuse, but if, in reaching a conclusion . . . the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

Hartley v. Hartley, 364 Pa. Super. 430, 436, 528 A.2d 233, 236 (1987). A finding of abuse of discretion is not made lightly but must rest on clear and convincing evidence; the trial court must be affirmed on any valid ground. Lyday v. Lyday, 360 Pa. Super. 16, 519 A.2d 967 (1986).

We find that the trial court abused its discretion in reducing the Hearing Officer's determination of arrearages. After review of the entire record, we find that the Hearing

[ 379 Pa. Super. Page 367]

Officer correctly reduced the certified amount of arrearages to $29,257.66 because each child became independent after his eighteenth birthday. The trial court's further reduction of this amount to $4,895.00 was unwarranted. Husband did not raise, nor did the trial court consider, the propriety of the support orders upon which arrearages accrued. Indeed, while Husband testified that he was in debt during this period, he made no attempt to prove that the alleged debt made it impossible for him to meet his support obligation. Thus, the situation in which this Court has, on occasion, reduced or remitted arrearages in child support cases when there had been a substantial change in the obligor's circumstances does not apply to the present case. See Commonwealth ex rel. Cochran v. Cochran, 339 Pa. Super. 602, 489 A.2d 804 (1985). For instance, in Commonwealth v. Vogelsong, 311 Pa. Super. 507, 457 A.2d 1297 (1983), this Court remitted arrearages because, shortly after the original support order was issued, the husband became permanently and totally disabled by heart disease and diabetes. We held that remittance of arrearages was the only equitable solution, especially considering the fact that the unmodified support order was greater than the husband's entire social security payment, his only source of income.

In the present case, however, the trial court remitted arrearages solely based upon its finding that Wife was at fault for not having the support order enforced and that therefore laches should preclude her from collecting the accrued arrearages. The court's determination was manifestly unreasonable on two grounds. First, Husband does not sustain his burden required by the test for application of laches. Second, the trial court based its conclusion on incorrect assumptions. The ...


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