Banks v. Banks
| Decision Date | 01 February 1980 |
| Citation | 418 A.2d 1370,275 Pa.Super. 439 |
| Parties | Sheryl B. BANKS, Appellant, v. David BANKS. |
| Court | Pennsylvania Superior Court |
Argued Sept. 10, 1979. [Copyrighted Material Omitted]
Warren L. Soffian, Philadelphia, for appellant.
Samuel Brenner, Philadelphia, for appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
This is an appeal by the mother from an order reducing the father's support obligation for the parties' minor daughter.
On April 13 1977, the father, David Banks, was ordered to pay $125 a week, plus Blue Cross and Blue Shield, to support the parties' daughter, Amy, who was born in March 1969. The order was entered by stipulation and was based on the father's then estimated annual income of $15,000. In October 1977, the father decided on his own to reduce his payment to $75 a week, and to stop paying Blue Cross and Blue Shield. On November 15, 1977, the father and mother, Sheryl Banks, were divorced. On December 6, 1977, the father filed a petition to reduce support, and on January 27 1978, the mother filed a petition to increase support. On February 5, 1979, following a hearing, the lower court granted the father's petition, and reduced support from $125 plus Blue Cross and Blue Shield to $75 a week, and denied the mother's petition to increase support. [1] The mother first argues that "as a matter of law" the lower court should not have heard the father's petition to reduce support because on December 13, 1978, when the petition was heard, the father was in arrears on the payments required by the support order of April 13, 1977, apparently in an amount in excess of $3000. [2]
It is true that where a party flagrantly disobeys a support order, his petition to reduce may be denied. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964); Beemer v. Beemer, 200 Pa.Super. 103, 107-108, 188 A.2d 475 (1962). As stated in Goodwin (quoting the lower court's opinion there):
"If a party does 'not deem it appropriate' to obey the Orders of the Court, the Court should not deem it appropriate to grant such party relief it seeks."
413 Pa. at 554-55, 198 A.2d at 504.
However, the issue is not, as the mother argues, "a matter of law" but rather a question of fact, i. e., in fact, was the party in question guilty of flagrant disobedience?
Here, whether the father's act of reducing support payments from $125 to $75 a week constituted flagrant disobedience was at least initially for the lower court to decide. Where the lower court does not make a determination that a party is in contempt for being in arrears, [3] we have hesitated to find contempt on appeal. Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500, remanded, 259 Pa.Super. 214, 393 A.2d 794, 795 (1978). The mere existence of arrearages does not preclude a hearing on a petition to reduce. Commonwealth ex rel. Fusco v. Fusco, 247 Pa.Super. 413, 372 A.2d 893 (1977). In Fusco, the lower court refused to grant a hearing because the petitioner was in arrears. We reversed and remanded for hearing, since so far as we could tell from the record, the petitioner had made a good faith effort to comply with the original support order, nevertheless falling in arrears because of his "precarious financial situation." 247 Pa.Super. at 417, 372 A.2d at 895. And see Rickert v. Rickert, 223 Pa.Super. 1, 296 A.2d 841, 842 (1972).
Implicit in the lower court's decision granting the father's petition to reduce is a finding that the father had made a good faith effort to comply with the original order. Thus the court said in the memorandum accompanying its order that the father had suffered a "steady decline in annual earnings from approximately $17,000 in 1977 to approximately $10,000 in 1978 . . . ." Also, the father did make the payments as originally ordered from April 13, 1977, until October 1977. On such a record we are unwilling to hold that the lower court should have found the father guilty of flagrant disobedience and have refused to hear his petition to reduce support.
2
The mother next argues that the lower court abused its discretion in granting the father's petition to reduce support.
As a general proposition, it may be said that the role of an appellate court in support proceedings is narrowly circumscribed; absent a clear abuse of discretion, it will defer to the order of the lower court. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 303, 310 A.2d 672, 673 (1973); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976). This circumscribed role exists because the appellate court must base its decision on a printed record, whereas the hearing judge has seen and heard the witnesses, and so has the better opportunity to evaluate the issues on their merits. Commonwealth ex rel. Friedman v. Friedman, 223 Pa.Super. 66, 67, 297 A.2d 158, 159 (allocatur refused 223 Pa.Super. xxxv) (1972). These considerations, however, do not imply that the appellate court is to accept without question the findings and conclusions of the lower court. To the contrary, the appellate court should ensure that the lower court follows proper procedures, and applies the relevant legal principles. Weiser v. Weiser, supra, 238 Pa.Super. at 498, 362 A.2d at 291 (concurring and dissenting opinion), citing Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350 (1933). In addition, the appellate court should scrutinize the record to ascertain whether the record supports the reasoning of the lower court; without such scrutiny, the appellate court cannot fulfill its responsibility of determining whether the lower court has abused its discretion, that is, whether it has "misapplie(d) the law" or reached a "manifestly unreasonable, biased, or prejudicial result." Girard Trust Bank v. Remick, 215 Pa.Super. 375, 377, 258 A.2d 882, 884 (1969).
Here, the record discloses that the lower court misapplied the law. In its opinion the court states:
Attempts were made (by the mother) to dispute the father's stated income by showing that he made periodic bank deposits in excess of his income and that, if true, his expenses amounted to more than his income. However, we found this to be unsuccessful and there was an absence of convincing evidence or proof that the father's income was other than what he stated it to be.
At 2.
Thus the court placed on the mother the burden of disproving the father's evidence and of doing so by offering "convincing evidence." However, the mother had no such burden, or indeed any burden at all. The father was petitioning for a reduction of the amount of support that he was required to pay by the terms of the April 13, 1977, order. While it is true that orders for child support are not final and may be decreased or increased by the court, Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa.Super. 163, 280 A.2d 456 (1971); Commonwealth ex rel. Barnes v. Barnes, 151 Pa.Super. 202, 30 A.2d 437 (1943), the court may not order a reduction unless the petitioner has proved by competent evidence a material and substantial change in his financial circumstances. Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974); Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa. Super. 127, 392 A.2d 717 (1978).
It cannot be maintained that the father met this burden of proof. Briefly stated, his testimony was: that from October 1977 through November 1978 his earnings as an industrial lighting salesman had decreased from $17,000 to $10,185; that this occurred because the company he represented had "a lack of leads" (N.T. 16), and on his next job, he earned less commission; (N.T. 24-25) and that his expenses during this period increased. [4] However, cross-examination disclosed the following:
1) The father's actual earnings had increased from $15,000 at the time of the original support order, to approximately $16,304.50 at the time of his petition for reduction: $11,005.91 from one company plus $1,298.59 from a second company, plus "$4,000, give or take" from a third company. (N.T. 31-32)
2) His general expenses, other than cost of living expense increases, have remained about the same. (N.T. 33-34)
3) Since the date of the original support order, he had reduced his expenses by completing car payments of $131 a month in June 1978. (N.T. 34)
4) For the year 1977, or 1976, he had invested $8,800 in a Self-Employed Persons Retirement Plan (Keogh Plan). (N.T. 37-39)
5) He rented living quarters in a residence in Margate, New Jersey, for the entire summer of 1977. (N.T. 44-45)
6) He took a vacation of about four days in Nassau during the Thanksgiving holiday of 1977. (N.T. 45-46)
7) He took another four-day trip to Freeport in December 1977. (N.T. 48-50)
8) From October 31, 1977, to December 15, 1977, his earnings, he said, were $1298.59, and yet during that period he deposited $2,728 in his checking account. (N.T. 63-68)
9) From January 1, 1978, through March 15, 1978 his reported earnings, he said, were $940.12, and yet during that period he deposited $2,304.72 in his checking account. (N.T. 70)
10) From March 15, 1978, through August 5, 1978, his earnings, he said, were $3,287.64, and yet during that period he deposited $6,265.15 in his checking account. (N.T. 95)
11) From October 1977 through October 1978, he deposited $16,073.37 in his checking account. (N.T. 94)
The father was asked on cross-examination to explain the apparent discrepancy between these deposits and expenditures and his claim of reduced income, but his response was in such general terms that we admit our inability to understand it. He indicated that the deposit in his Keogh Plan account was "a rollover" (N.T. 43), the funds for which came from other accounts (N.T. 42), and he referred on several occasions to having borrowed (or having "probably borrowed"...
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