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11/20/97 MARGARET GERLAND v. FREDERICK GERLAND

November 20, 1997

MARGARET GERLAND, APPELLANT
v.
FREDERICK GERLAND, JR., APPELLEE



Appeal from the Order entered December 19, 1996 in the Court of Common Pleas of Montgomery County, Family, Nos. 94-24531; 94-20354, Case No. 61496. Before SMYTH, J.

Before: Johnson, Ford Elliott And Montemuro*, JJ. Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

FILED November 20, 1997

This is an appeal from an order awarding spousal and child support.

The parties to this matter were married in May of 1976, and separated in December of 1993. There are three children of the marriage: Gretchen, born June 17, 1979, Rebecca, born November 28, 1980, and Andrew, born April 13, 1989. A support order was entered in October of 1994, awarding Appellant $300 per week for the children, and $200 per week spousal support. On December 11, 1996, a hearing was held on Appellant's exceptions to the December 1994 order; thereafter the terms of that order were increased to $322 per week child support, and $236 per week for spousal support, with $20 per week to be paid on arrearages. Appellant's motion for reconsideration was denied, and this appeal followed.

Appellant was trained as a nurse, but worked only briefly after receiving her nursing certification, having left employment at the birth of the parties' first child. She returned to school part-time when the couple separated in order to obtain training as a school nurse, a position which would allow her to work and yet look after the parties' two younger children. She is currently employed three days per week in a school nurse position which provides no benefits, and is not expected to lead to full-time employment. Her compensation was determined by the trial court to be $900 per month.

Appellee is employed as special agent in the criminal investigation division of the Internal Revenue Service, for which his 1996 gross salary was approximately $82,000. His job provides full benefits, and family participation in a medical insurance program offered through the IRS costs approximately $48 per month. *fn1

A trust fund was established for each of the children through gifts provided by Appellant's mother. Approximately $130,000 is contained in Gretchen's fund. At the time of hearing, she was an honor student in her senior year at a parochial high school awaiting responses from colleges to which she had applied. Rebecca, who was residing at an inpatient drug and alcohol facility at the time of hearing, *fn2 has been diagnosed with bipolar disorder, attention deficit disorder and learning disabilities. She is a self mutilator, is maintained on several medications, and at present requires private schooling. The trust fund in her name contains approximately $125,000. The youngest child, Andrew, has been diagnosed with speech problems because of palate deformity which can be addressed with extensive orthodontia. He has in the past attended a private school, *fn3 and his trust fund contains some $40,000.

There is no argument advanced specifically objecting to the amount of the support award. Rather, Appellant raises claims that the support order should have included provisions for medical insurance coverage, unreimbursed medical expenses, including orthodontia, and private school tuition, as well as a claim that the order should be made retroactive to the filing of the complaint for support.

Generally, our review of the propriety of a support award is governed by an abuse of discretion standard.

An abuse of discretion is not merely an error of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground.

Griffin v. Griffin, 384 Pa. Super. 188, 193, 558 A.2d 75, 77 (1989) (en banc) (citations omitted).

The trial court, in fashioning the support award to exclude health coverage, contribution to unreimbursed medical expenses, and private school tuition, looked to the children's trust funds to cover these costs, since the terms of the trust instrument *fn4 leave expenditure of trust funds for purposes of the children's "health, maintenance, education (including college and graduate school) and support," (Trust Instrument at P 2.C(2)), entirely to Appellant's discretion. The court observed that trust funds established for a child's support or education may be taken into account when calculating child support, Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987), and that psychiatric or psychological services as well as ...


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