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07/16/97 MASAKO TERPAK v. JOHN B. TERPAK

July 16, 1997

MASAKO TERPAK, APPELLANT
v.
JOHN B. TERPAK, JR., APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, Civil Division at No. DRO # 59535 0046-SA-1996. Before BRILLHART, J.

Before: Cavanaugh, Popovich and Olszewski, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed July 16, 1997

On appeal, the appellant, Masako Terpak, claims the trial court abused its discretion in awarding spousal support below that recommended under Pennsylvania's Uniform Support Guidelines. We reverse.

The record discloses the appellant met the appellee, John B. Terpak, Jr., while he was on military duty in Japan in 1964. The parties married in 1969 and two children were born of the marriage, both of whom are emancipated. Once the appellee retired from the military in 1980, the couple moved to York, Pennsylvania. The appellee secured a job with York Barbell Corporation, a business in which his father was a stockholder. When the parties separated in 1995, the appellee had risen to the level of executive vice-president, owned 50% of the corporation's stock (given to him by his father) and received an annual salary of $100,000.

The appellant filed a complaint in January of 1996 claiming the appellee had deserted the marriage and neglected to provide for her support. With the parties' failure to reach an agreement, a Domestic Relations Officer (DRO) directed the appellee to pay $2,274 plus $25 for arrears per month. The appellant filed an appeal demanding a hearing de novo on grounds the DRO erred in offsetting the appellee's support obligation by a monthly payment ($620) on an irrevocable life insurance trust for the children, and the DRO erred in failing to determine the appellee's dividend and interest income for 1995.

A hearing was held on June 10, 1996, after which the court awarded the appellant $3,500 in support. This figure was below the $5,202 assessed under the Uniform Support Guidelines. This ensuing appeal challenges the court's order as an abuse of discretion.

In Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994), the trial court ordered the father to pay $113 less in child support than indicated by the Uniform Support Guidelines because the child did not need the money. The mother's appeal resulted in a remand for the imposition of an award consistent with the appropriate guideline figure. In doing so, our Supreme Court held in relevant part:

Rule 1910.16-1 explicitly states that the amount of support, whether it be child support, spousal support or alimony pendente lite, shall be determined in accordance with the support guidelines which consist of not only the grids set forth in Rule 1910.16-2 and the formula set forth in Rule 1910.16-3, but also Rule 1910.16-5 which discusses in detail the operation of the guidelines. The rules make clear that the amount of support as determined from the support guidelines is presumed to be the appropriate amount of support and that any deviation must be based on Rule 1910.16-4.

The presumption is strong that the appropriate amount of support in each case is the amount determined from the support guidelines. * * * Deviations will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.

The support guidelines were promulgated pursuant to the Act of October 30, 1958, as amended, 23 Pa.C.S. § 4322, which provides that child and spousal support shall be awarded pursuant to statewide guidelines as established by general rule by the Supreme Court of Pennsylvania. The legislation provides that:

the guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net income and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention.

Under Rule 1910.16-4, a court may not deviate from the guidelines on the ground that the child [or spouse] does not need this amount of money. This is not a factor that is set forth in Rule 1910.16-4(b). While subsection (7) of that Rule which references the standard of living of the parties might seem at first blush to support the trial court's reasoning, we find that given the premises on which the guidelines are based, subsection (7) was not intended to justify the downward modification of the guideline figures absent a showing of special needs and/or circumstances. Again, the purpose of the support guidelines is to make available for the children's ...


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