Com. ex rel. Cochran v. Cochran

• Decision Date: 27 February 1985
• Citation: 489 A.2d 804,339 Pa.Super. 602
• Parties: COMMONWEALTH of Pennsylvania ex rel. Patricia A. COCHRAN a/k/a Patricia Avery Keuther, Appellee, v. W. Peter COCHRAN, Appellant.
• Court: Pennsylvania Superior Court

Page 804

489 A.2d 804

339 Pa.Super. 602

COMMONWEALTH of Pennsylvania ex rel. Patricia A. COCHRAN

a/k/a Patricia Avery Keuther, Appellee, v. W. Peter COCHRAN, Appellant.

Superior Court of Pennsylvania.

Argued July 19, 1984.

Filed Feb. 27, 1985.

Donald Brown, Philadelphia, for appellant.

Judith S. Eden, Philadelphia, for appellee.

Before CAVANAUGH, BECK and TAMILIA, JJ.

PER CURIAM:

The proceedings in the court below were based on a petition by the appellee, Patricia A. Cochran, for an increase in support for her two children, one of whom was attending college at the time of the petition; a second petition was to hold the appellant, W. Peter Cochran, in contempt for failure to comply with a previously entered support order. ¹ The support order in question was entered by agreement by Judge Reed in 1981 and was in the amount of $200.00 per week for the support of two children, one of whom was eighteen and the other was approximately twelve years of age. A hearing was held in the court below before Judge Bloom who entered two orders from which consolidated appeals were taken to this Court. On August 5, 1983, the court entered an order directing the appellant to pay $2,288.00 to the appellee to reimburse her for their daughter's college expenses for one year. ² A second order of the same date determined that the appellant was in contempt of court and directed him to pay $1,000.00 to the appellee to purge himself of contempt and also increased child support from $200.00 per week to $225.00 per week.

At the hearing of June 9, 1981, it was agreed between counsel for the parties, among other things, that the appellant would contribute to reasonable college expenses for Jill Cochran, who at that time was contemplating attending college. The appellee was divorced from the appellant and after the June, 1981, hearing she remarried.

At the hearing before Judge Bloom on the basis of appellee's petition for increased support as discussed above, the record established that the appellant had allowed substantial arrearages to accrue for child support on the support order. In addition, his daughter, Jill, was then attending Kutztown State College. There was extensive testimony concerning college expenses for Jill Cochran. It appeared that her mother, the appellee herein, who had a real estate license, was not working at the time and that she stayed home to take care of her son. When the appellee remarried after the June, 1981, hearing her standard of living improved substantially over what it had been when she was married to the appellant.

The appellant at the time of the hearing was in the real estate and building business which had been in a serious recession. The testimony established that he had been in the real estate business for many years. The appellant introduced W-2 Forms from his own corporations which indicated that he had an earned income of some $14,000.00 in the year 1982. He testified that he had to borrow $5,000.00 from his mother and $10,000.00 from his girlfriend's mother in order to live. There were various judgments against his building corporation and against him personally. Around this time he had sold a number of buildings for substantial prices but he testified that these were subject to large encumbrances, so that the net proceeds were relatively small. Nevertheless, he admitted that in 1981 he bought his girlfriend a sports car for which he paid $12,000.00 in cash.

Appellant contends that the court below erred in entering an increased support order as the child for whom support was increased was an adult and was not a party to the action. We agree. Pa.R.C.P. 1910.3(4) in dealing with actions for support provides:

Rule 1910.3. Parties

An action shall be brought

(4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.

Pa.R.C.P. 1910.3, defining who may bring an action for support, includes a petition to increase support brought by a parent of a child over eighteen years of age who is receiving support payments on behalf of such child. ³ Therefore, the Rule should be construed to require the written consent of a child over eighteen years of age when a parent seeks to impose an additional support obligation on the other parent. ⁴ If through the written consent requirement we have given children over eighteen a role in the decision whether to seek a support order in the courts, there is no reason why that role should exist only if the child was not previously covered by a support order during his or her minority.

In the instant case appellee admitted that she did not have Jill's written consent to bring an action to increase support. In fact, she stated on the record that her children were not even aware that she was in court concerning their support. See N.T. 15-16. Appellee's explanation that she did not want to subject the children to the emotional trauma of the proceedings is insufficient, since the Rule requires only Jill's written consent, not her testimony or even her presence. Therefore, the court below should have dismissed the petition to increase support for failure to conform to Rule 1910.3, insofar as it sought increased support for Jill.

The next issue is whether or not the court below abused its discretion in increasing support as to David. In reviewing support orders, an appellate court will defer to the court below in the absence of a showing of a clear abuse of discretion. Machen v. Machen, 278 Pa.Super, 135, 420 A.2d 466 (1980); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). The scope of review in support cases is very narrow. Commonwealth v. Goodyear, 270 Pa.Super. 326, 411 A.2d 550 (1979). On the other hand, the discretion to be exercised by the hearing court has been described as a "wide discretion." Boni v. Boni, 302 Pa.Super. 102, 448 A.2d 547 (1982). Nevertheless, support orders must be fair and not confiscatory and must allow for reasonable living expenses for the supporting parent. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). In this case, the court was modifying an already existing support order and a support order may be modified only upon a showing of a substantial change of circumstances since the entry of the prior order. Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). The party seeking to increase a support order has the burden of proving by competent evidence the existence of material and substantially changed circumstances. Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984). The petitioner introduced no evidence to show any change in circumstances in the appellant's case that would justify an increase in support. On the contrary, the evidence established that the husband's income and earning capacity were no greater than in 1981 and the court below abused its discretion in increasing the support order from $200.00 to $225.00 per week. We also note that the petitioner at the time she petitioned for increased support was contributing nothing to her children's support and was not working. She had skills in the real estate business which made her employable in that area. She lived in an expensive home with her present husband. She had taken vacations in Europe, Bermuda, Florida and Colorado with her husband during the short period of time they had been married. The petitioner estimated that she spent at least $5,000.00 a year on clothing and belonged to the Springton Tennis Club where she frequently played tennis. The petitioner's husband has a substantial income of over $100,000.00 per year. While he clearly has no obligation to contribute to the support of appellant's children, the record established that the petitioner, who contributed nothing to her children's support, lives in quite comfortable circumstances. In contrast, the record indicates that the appellant's fiscal picture is not nearly as bright...