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COMMONWEALTH PENNSYLVANIA EX REL. DOLORES ANN SLADEK v. ROBIN L. SLADEK (08/31/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 31, 1989.

COMMONWEALTH OF PENNSYLVANIA EX REL. DOLORES ANN SLADEK, APPELLEE,
v.
ROBIN L. SLADEK, APPELLANT

Appeal from the Order of the Court of Common Pleas of Bucks County, Civil at No. 81-63726-S-10.

COUNSEL

Richard H. Pratt, Doylestown, for appellant.

John D. Blumenthal, Doylestown, for appellee.

Cirillo, President Judge, and Rowley and Montemuro, JJ.

Author: Montemuro

[ 386 Pa. Super. Page 491]

Appellant, Robin Sladek, appeals from an order increasing his child support payments, claiming that the trial court erred in granting an increase where appellee, Dolores Sladek, failed to prove a material change in circumstances justifying modification. Because we agree with appellant that no material change in circumstances justifying an increase was established by appellee, we reverse.

[ 386 Pa. Super. Page 492]

The parties are the parents of three children, Jennifer, Melissa, and Jonathan, respectively aged 19, 15, and 13 at time of hearing. In 1981, appellant began paying support for all three children pursuant to a court order.*fn1 At that time, the children then 12, 8, and 6, were all living with the appellee. A change in the amount of support occurred in August of 1986, when the oldest child began residing with appellant. The court reduced the order to $500/month, which represented support for the two youngest children only. This amount was increased to $600/month in 1988 when appellee petitioned the court for modification based solely upon a rise in the cost of living. Although no specific instances of increased child-related expenses were outlined by appellee,*fn2 the trial court granted her petition. It is from the 1988 order that appellant appeals.

When modification of a child support order is sought, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified support order. Steinmetz v. Steinmetz, 381 Pa. Super. 440, 554 A.2d 83, 85 (1989); Shutter v. Reilly, 372 Pa. Super. 251, 255, 539 A.2d 424, 426 (1988). The lower court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions. Lampa v. Lampa, 371 Pa. Super. 1, 9, 537 A.2d 350, 352 (1988). We will not disturb a child support order unless the trial court, in determining the amount of support, has abused its discretion.

[ 386 Pa. Super. Page 493]

    years later, the trial court raised the amount to $450.00/month based solely upon the advancing age of the children. The expenses necessitating the increase included private school, membership at a swimming club, medical bills, toys, food, baby-sitting fees, and psychiatric care for one of the children. We held that such a large increase constituted an abuse of discretion where the only significant change was the increased age of the children which made them eligible for school attendance, and we reduced the amount to $250.00 per month. Id. 210 Pa. Super. at 249, 232 A.2d at 78. Although we upheld an increase in the amount of support based on the incidence of age-related expenses, we did so only after the petitioner had presented specific instances of these greater expenditures.

In Commonwealth ex. rel. Luongo v. Tillye, 229 Pa. Super. 453, 458, 323 A.2d 172, 174 (1974), our recognition that "the increased expenditures which are incurred by reason of the needs of growing children are important items to consider in support modification proceedings," was predicated upon a situation in which ten years had passed since the original support order was entered, and the child had grown from a year old infant into an eleven year old boy who was attending Catholic school. In that case, we held that the trial court's $20.00 per month increase in child support did not adequately measure the cost of living factor between 1963 and 1973, let alone consider the change in the father's financial situation and the increased needs of an older boy. Id., 229 Pa. Superior Ct. at 458, 323 A.2d at 174. As in Balph, the mother in Tillye made specific references to increases in expenditures caused by the child's advancing age which necessitated the increase in support, such as her purchase of the home in which she and her son were living, the child's school tuition, the child's dental and clothing bills, and her desire to allow his participation in such activities as Boy Scout Camp.

In Forry, supra, we reversed the trial court's denial of an increase in child support, which was based upon the conclusion that the only proof of a needed increase was the mother's general statement at the domestic relations hearing

[ 386 Pa. Super. Page 495]

    that her expenses for rearing her daughter had increased in the last thirteen years, and held that although mere passage of time does not in itself constitute a change of circumstances, the passage of thirteen years, during which the child aged from two to fifteen, was a significant factor and when combined with such factors as remarriage of both parents, birth of another child to the mother, increase in both parent's incomes, attendance at a private school by the child, and cost of the child's psychological counseling sessions, would constitute changed circumstances. Id. 359 Pa. Super. at 605, 519 A.2d at 517. Finally, in Palmatier v. MacCartney, 365 Pa. Super. 300, 304, 529 A.2d 518, 520 (1987), we affirmed the trial court's $100.00 per month increase in child support for four children which was based upon the five year lapse of time between the original support order and the present modification; the combined effect of inflation, the educational expenses incurred by the children's mother which were required for her continued employment; and the increased expenses necessitated by the reality of raising four teenage boys. We note that unlike the appellee in the instant case, when the mother in Palmatier was asked why an increase was needed, she replied that the boys, then age 16, 15, 14, and 11, consumed more food than they did five years ago; their clothes were more expensive then they were five years ago; and car insurance for the oldest boy was an expense which did not exist five years ago. Id., 365 Pa. Superior Ct. at 304, 529 A.2d at 520. In addition, unlike the instant case, the trial court in Palmatier had before it detailed income and expense information from which it could have found a material change in circumstances existed. Id., 365 Pa. Superior Ct. at 304, 529 A.2d at 520.

The facts of the instant case differ significantly from those present in the above cases. Herein, appellee's*fn3 petition for an increase in child support was premised only upon the increased cost of living. The record is devoid of any references to specific increases in expenditures caused by

[ 386 Pa. Super. Page 496]

    either the childrens' advancing ages or the increased cost of living. A review of the record reveals only one additional expense since the modification of the support order in 1986, that is, a 1988 car loan, which arose from the trade-in of appellee's car for a 1985 BMW. Unlike the children in the cases above cited, the two children in the instant case have not dramatically changed in age since the support order was last modified. One was already a teenager when the order was modified in 1986, and the other was nearing that age. Expenses, which appellee would be expected to incur due to the childrens' school attendance, already existed in 1986. Moreover, any increases in the children's medical bills are absorbed by appellant, whose insurance covers the childrens' medical needs. Nor is the mere passage of two years sufficient to constitute a change in circumstances. Forry, supra. For these reasons, we hold that appellee's conclusory declaration that an increase in support was necessitated by the increase in the cost of living over a two year period, without any reference to specific instances in which the increase in the cost of living has affected her expenditures in relation to her two children, is insufficient to establish the existence of a change in circumstances.

Order reversed.

Disposition

Order reversed.


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