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CAROL H. KING v. ROBERT E. KING (01/19/89)

argued: January 19, 1989.


Appeal from the Order entered on May 31, 1988, in the Court of Common Pleas of Chester County, Civil Division, at No. 1006 N 1987.


Bethania S. Wright, West Chester, for appellant.

Dennis D. Brogan, Asst. Public Defender, West Chester, for appellee.

Cirillo, President Judge, and Beck and Tamilia, JJ. Tamilia, J., concurs and dissents.

Author: Beck

[ 390 Pa. Super. Page 228]

This is an appeal from a final order directing husband appellant to pay spousal and child support. Husband raised the following issues in his exceptions to the master's report and now raises the same issues on appeal:

1. Whether it was error to conclude that plaintiff [wife] was entitled to support for herself because her conduct was such as to deprive her to entitlement?

2. Whether it was error to fail to attribute unused earning capacity to plaintiff, where she is a registered nurse and refuses to even consider jobs where she could earn more money?

3. Whether it was error to find that the net income of defendant [husband] was Five Thousand Seven Hundred Seventy-Three ($5,773.00) Dollars per month, where the amount is contrary to fact?

4. Whether it was error to attribute the retained cash in defendant's partnership to him as income?

5. Whether it was error to award support in an amount in excess of the reasonable needs of the recipients thereof?

6. Whether it was error to award support in an amount which exceeds defendant's take-home earnings?

7. Whether it was error to award support in the amount of Two Thousand Nine Hundred Sixty ($2,960.00)

[ 390 Pa. Super. Page 229]

Dollars per month, because that amount is confiscatory?

8. Whether it was error to award spousal support in an amount exceeding one-third of defendant's income?*fn1

The trial court found no merit in any of these contentions and dismissed husband's exceptions.

Our standard of review is narrow. We may reverse only if we find that the trial court committed an abuse of discretion in awarding spousal support. Morley v. Morley, 283 Pa. Super. 397, 424 A.2d 524 (1981). We find no such abuse of discretion here. The trial court, per Judge Michael Joseph Melody, authored a comprehensive and well-supported opinion that more than adequately addresses and resolves the issues presented. Thus, relying heavily on the reasoning of the trial court, we affirm.

As to issue number one, the trial court appropriately determined that wife's conduct does not bar husband's obligation to pay spousal support. The court correctly stated the applicable legal standards as follows:

"It is well settled that the obligation of support continues until it is shown that the conduct of the dependent spouse provides a ground for divorce. Morley v. Morley, 283 Pa. Super. 297 [397], 424 A.2d 524 (1981); Hellman v. Hellman, 246 Pa. Super. 536, 371 A.2d 964 (1977). Moreover, the conduct claimed to nullify the obligation must be proven with clear and convincing evidence. Commonwealth v. Turner, 258 Pa. Super. 388, 392 A.2d 848 (1978); Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. McCuff v. McCuff 196 Pa. Super. 320, 322, 175 A.2d 124, 125 (1961) ('Proof of guilt must be clear and satisfactory')"

[ 390 Pa. Super. Page 230]

    flexibility of schedule she needed to care for her children. We find no error in the court's conclusion that no additional income should be attributed to wife.

Next, husband challenges the court's finding that husband's net income was $5,773.00 per month. As to this contention, the trial court reviewed the testimony presented to the master and concluded that there was adequate support in the record for the master's factual conclusions. We agree and find no ground for reversal of this factual determination.

Fourth, husband alleges that it was error for the court to have allowed retained earnings of the partnership of which husband is a partner to be attributed to husband as income. The trial court concluded that the testimony as to why the partnership was retaining this income was too vague to support husband's claim that retaining this money was necessary to the partnership. We agree. To allow husband to shield substantial income of his business from consideration in determining his support obligation without more evidence as to a legitimate need to do so would allow spouses with support obligations to evade their obligations by unilaterally reducing their income. This is obviously impermissible under Pennsylvania law. See Commonwealth ex rel. Loring v. Loring, 339 Pa. Super. 92, 488 A.2d 324, 326 (1985).

In husband's next argument, he alleges that wife and her children were awarded support in excess of their reasonable needs. Husband bases this argument exclusively on the fact that wife requested less support than she was awarded. We find the award of support to be well within the trial court's discretion. The trial court more than adequately explained its determination of the appropriate level of support as follows:

[ 390 Pa. Super. Page 232]

The amount of support awarded does not exceed the reasonable needs of the wife and the children. In reaching this conclusion we have followed and been guided by our Appellate Courts through their opinions in Melzer v. Page 232} Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Ryan v. DeLong, 371 Pa. Super. 248, 538 A.2d 1 (1987); Shutter v. Reilly, 372 Pa. Super. 251, 539 A.2d 424 (1988).

The formula of Melzer is not intended for strict mechanical application. "In interpreting Melzer, the Superior Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majorities' [sic] admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. DeLuca, 353 Pa. Super. 622, 625, 510 A.2d ...

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