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ROBERT MOSIER v. CAROL MCCAUGHTRY (05/22/89)

submitted: May 22, 1989.

ROBERT MOSIER, APPELLANT,
v.
CAROL MCCAUGHTRY, APPELLEE



Appeal from the Order entered October 20, 1988 in the Court of Common Pleas of Crawford County, Civil Division, at No. D.R. 1982-66.

COUNSEL

John F. Spataro, Asst. Dist. Atty., Meadville, for Mosier, appellant.

Joan D. Mason, Meadville, for appellee.

Del Sole, Kelly and Montgomery, JJ.

Author: Del Sole

[ 387 Pa. Super. Page 407]

This is an appeal from a trial court order vacating an order requiring the payment of arrearages in the child support owed by Carol McCaughtry, Appellee, to Robert Mosier, Appellant. We find that the trial court erred in vacating the order concerning the arrearages and remand for a new hearing.

Mosier and McCaughtry were married and then separated. The couple had one child during that marriage, Karin. Initially, Mosier was awarded primary custody of Karin. A consent agreement was entered into and McCaughtry agreed to pay Mosier $30.00 a week for child support. Later, McCaughtry received an order from the trial court which allowed for the accumulation of arrearages at the rate of $30.00 per week while she attended graduate school. The intention of the parties was to have McCaughtry pay off the arrearages at the rate of $15.00 per week once her studies ended. The total accumulation of arrearages is $3000.00.

Two years later, McCaughtry received primary custody of Karin. McCaughtry filed a petition for support against Mosier. The trial court ordered both parties to each pay 50% of Karin's uninsured medical, dental, prescription and optometric expenses. Payment of any of these expenses was conditioned on the approval of both parties. Mosier was also ordered to pay McCaughtry $50.00 per week for child support. Mosier paid the support as ordered. McCaughtry never paid the arrearages of $3000.00 to Mosier despite the fact that she finished her graduate studies and is now making $42,000.00 a year.

This appeal stems from McCaughtry's most recent petition to modify. McCaughtry stated that because she had paid Karin's parochial school tuition and intended to pay

[ 387 Pa. Super. Page 408]

Karin's psychiatric bills, those expenses should completely offset her obligation to repay the arrearages to Mosier. The hearing officer found that those expenses were of no relevance to the arrearages. Later, a judgment was entered against McCaughtry in the amount of $3000.00. (In another petition to modify filed at the same time by McCaughtry, the hearing officer held that private school should be paid for by the parent putting the child into the school and that counseling expenses should be divided equally between the parents.) McCaughtry filed a request for a hearing before the trial court. One year later, after granting a continuance to McCaughtry, the trial court held a de novo hearing which included testimony from both parties.

The trial court ruled McCaughtry's expenses for tuition and psychiatric bills for Karin offset the arrearages owed to Mosier. The court ordered the arrearages to be vacated and removed from the record. It then declared the case to be terminated. Mosier raises five issues on appeal. We reach only the first two and vacate the order and remand this case back to the trial court.

Mosier's first two issues are that the trial court did not have jurisdiction to vacate the arrearages and that it abused its discretion when it did so. The ...


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