Appeal from the Order entered March 3, 1988 in the Court of Common Pleas of Delaware County, Civil Division, at No. F-33-1107 of 1980.
Allen H. Tollen, Media, for appellant.
Harry J. Bradley, Media, for appellee.
Tamilia, Popovich and Hoffman, JJ.
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This appeal is from an order granting appellant's petition to modify child support. Appellant contends that the lower court erred in failing to adequately reduce his support payments by (1) not treating his alimony payments as an expense in calculating his income; (2) misapplying the guidelines under Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); (3) finding his income to be significantly higher than it actually is; (4) not questioning appellee's excessive clothing expenses; and (5) not considering the fact that he has remarried and now has an additional child. For the reasons set forth below, we vacate and remand for proceedings consistent with this Opinion.
The parties were married in 1961 and divorced on May 3, 1982. Three children were born of the marriage: Kimberly, Matthew, and Cynthia. On September 25, 1980, pursuant to an agreement between the parties, a temporary support order was entered directing appellant to pay fifty dollars ($50.00) per week. Following a hearing before a Master on September 10, 1981, the Master recommended that the
[ 381 Pa. Super. Page 444]
amount of support be increased to sixty-five dollars ($65.00) weekly. Upon entry of the final divorce decree, the support order was amended and appellant's support obligation was reduced to sixty dollars ($60.00) per week.
Subsequently, appellant filed a petition to modify the support order based on a change in circumstances. In his petition, appellant alleged that he now had custody of one of the minor children and that appellee's income had increased substantially. A hearing on the petition was held before a Master and the Master recommended that the support order be reduced to twenty-five dollars ($25.00) per week. Appellee excepted to the Master's recommendation and requested a hearing before the Court of Common Pleas. Following a hearing de novo, the lower court held that under the guidelines set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), appellant is responsible for sixty-eight percent (68%) of the support of the child residing with appellee and appellee is responsible for the remaining thirty-two percent (32%). Lower Court Opinion at 3. Accordingly, the court rejected the Master's recommendation, and instead reduced the support order for the minor child residing with appellee to forty-eight dollars ($48.00) per week. This appeal followed.
Appellant first contends that in calculating his support obligation under the guidelines set forth in Melzer, the lower court erred in failing to characterize his alimony payments as an expense to him and income to appellee. Appellant argues that the court erred in including in his net income monies earmarked to fulfill his alimony obligation. Appellant reasons that his alimony payments are not part of his cash flow available for child support, and thus, are properly excludable as a reasonable living expense. We agree with appellant that the alimony award is properly excludable as income.
Our scope of review in child support cases is narrow, and we are limited to determining whether a clear abuse of discretion, as shown by clear and convincing
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evidence, has occurred. See Fee v. Fee, 344 Pa. Super. 276, 279, 496 A.2d 793, 794 (1985); Commonwealth ex rel. Cochran v. Cochran, 339 Pa. Super. 602, 607, 489 A.2d 804, 807 (1985); Commonwealth ex rel. Stump v. Church, 333 Pa. Super. 166, 168-69, 481 A.2d 1358, 1359 (1984). "An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment." Marshall v. Ross, 373 Pa. Super. 235, 238, 540 A.2d 954, 956 (1988). The general rule is that a child support order is not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth ex rel. Tokach v. Tokach, 326 Pa. Super. 359, 362, 474 A.2d 41, 43 (1984). A support order must be fair, not confiscatory, and allow for the reasonable living expenses of the parent, consistent with the parents' and children's "station in life" and "customary standard of living". Funk v. Funk, 376 Pa. Super. 76, 80, 545 A.2d 326, 328 (1988) (citations omitted).
Under the guidelines enunciated by our Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984),*fn1 a parent's support obligation is calculated by first, determining the reasonable needs of the children and then, determining the respective abilities of the parents to support their children. Id., 505 Pa. at 463, 480 A.2d at 993; DeWalt v. DeWalt, 365 Pa. ...