DeWalt v. DeWalt
| Decision Date | 29 July 1987 |
| Citation | 529 A.2d 508,365 Pa.Super. 280 |
| Parties | Christopher DeWALT v. Duane DeWALT, Appellant. 1563 Pitts. 1986 |
| Court | Pennsylvania Superior Court |
Thomas C. Panian, Robert Clarke, Washington, for appellant.
Clayton G. Nestler, Washington, for appellee.
Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
This is an appeal from an order of the Court of Common Pleas of Washington County attaching the wages of appellant, Duane DeWalt.
Christopher DeWalt filed suit against his father, Duane DeWalt, for child support. The trial court ordered the father to pay $100 per month and attached his wages for that purpose. He then appealed to this court.
The court order which attached DeWalt's wages is dated October 6, 1986. It was entered on the docket that same day but DeWalt did not file a notice of appeal until November 6, thirty-one days after entry of the order. Pa.R.A.P. 903 provides that an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Rule 108(b) defines the date of entry of an order in a matter of this kind as "the day on which the clerk makes the notation in the docket that notice of entry of the order has been given...." See Lyday v. Lyday, 360 Pa.Super. 16, 519 A.2d 967, 969 (1986) (). In this case, notice of the October 6th order was mailed on October 14. Therefore, the appeal of November 6 was within thirty days and was proper.
Appellant presents three issues for our review: (1) whether the support order imposes an undue hardship upon him; (2) whether the order is based upon erroneous information; and (3) whether the case must be remanded for clarification of the trial court's order.
On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. Kopp v. Turley, 359 Pa.Super. 106, 109, 518 A.2d 588, 590 (1986). An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment. Id. at 109, 518 A.2d at 590.
The legal standard which controls a parent's obligation to pay child support varies based upon the child's age. A parent has a stringent obligation to support a child aged 18 or less. Sutliff v. Sutliff, 339 Pa.Super. 523, 547, 489 A.2d 764, 776 (1985). Child support is the shared responsibility of each parent. Leonard v. Leonard for and on Behalf of Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986). This does not mean that each parent must pay an equal amount. They must discharge their obligation in accordance with their individual capacity and ability. Id. at 609, 510 A.2d at 829.
In order to calculate the support obligation of each parent, the court must first determine the reasonable needs of the children. Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986). Reasonable expenses are not limited to the bare necessities. A child is entitled to a reasonable standard of living based upon the social station, fortune and financial achievements of their parents. Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984).
The court must next determine the respective abilities of the parents to support their children. To arrive at this amount, the court must make an allowance for the reasonable living expenses of each parent. The court must then calculate the parent's net income or earning capacity if that figure differs from actual income . Lyday at 21, 519 A.2d at 970. The trial court must consider every aspect of a parent's financial ability to pay support. The actual and potential cash flow from his property interests, financial resources, stock holdings and other investments should all be considered. Id.
In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a plurality of our Supreme Court, per Justice Larsen, established guidelines for the calculation of child support awards. Id. at 472-75, 480 A.2d at 996. Justice Larsen's formula provides:
A = amount available to parent A
B = amount available to parent B
A total support in kind actual support
----- X support needs = - =
A k B obligation of A contribution obligation of A
B total support in kind actual support
----- X support needs = - =
A k B obligation of B contribution obligation of B
However, a majority of the Court eschewed strict mechanical formulas and endorsed a flexible approach in these cases. Id. at 477-78, 480 A.2d at 999 (Flaherty and Hutchinson, JJ. concurring).
A majority of the Court did agree that each parent's support obligation should be determined based upon the reasonable needs of the children and the parent's reasonable expenses and earning capacities. The members of the Court differed over whether these criteria should be applied via a mathematical formula or whether we should trust in the judgment and discretion of our trial courts.
In interpreting Melzer, the Superior Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majority's admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. Deluca, 353 Pa.Super. 622, 625, 510 A.2d 1239, 1241 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986).
A parent's duty to support his minor child is nearly absolute and the amount of time spent together has no bearing on the obligation. Even a parent who never sees his children has a duty to support them. Melzer, 505 Pa. at 472, 480 A.2d at 996. Though the parent-child relationship is the basis of this duty, a parent may not be released from this obligation by the actions of the child. A minor child cannot waive his right to support. This is so even if he renounces the parent and refuses to see him. See Schmidt v. Schmidt, 313 Pa.Super. 83, 87, 459 A.2d 421, 423 (1983); See also 59 Am.Jur.2d Parent and Child § 67 (1971).
This obligation is unaffected by the independent resources of the child. As long as a parent is able to support his minor child, the child should not be forced to use his own funds to support himself. Sutliff, 339 Pa.Super. at 538, 489 A.2d at 771.
A parent's obligation to support a child over the age of eighteen is a more complicated matter.
As this court has stated:
[T]he presumption is when a child reaches majority the duty of the parent to support that child ends. Once the presumption arises, it is then incumbent upon the child to rebut the presumption. The duty to support the adult child continues where the child is physically or mentally feeble or otherwise unemployable. The adult child, however, has the burden of proving the conditions that make it impossible for her or him to be employed.
Verna v. Verna, 288 Pa.Super. 511, 515, 432 A.2d 630, 632 (1981) (citations omitted).
Because this duty is based upon the child's inability to be self-supporting, the court may consider the child's income in fashioning its award. The parent is only called upon to aid the child if he cannot aid himself. To the extent that he can aid himself, the parental contribution is unnecessary. The "reasonable needs" of a disabled adult child are those needs which he is unable to meet through his own efforts.
This obligation to support a child who is mentally or physically defective is not diminished even if the child refuses to see the parent. Schmidt, 313 Pa.Super. at 87, 459 A.2d at 423. The attainment of majority does not destroy the natural relationship between a parent and a child. If the child refuses to see the parent, that relationship may exist only in name. Even so, society will not allow a parent to turn his back on the child. Society will not step in and care for the child if the parent is capable of providing support. The parent's legal obligation arises from his moral responsibility to care for the child whom he brought into the world. This responsibility may be unpleasant if the disabled child is ungrateful. However, a parent's interest in avoiding this distasteful and bitter reproach is outweighed by the societal interest in preventing such children from becoming a public burden.
Still another situation is that of the adult child who wishes to pursue a post-high school education. In Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981), the court wrote:
It is settled law in Pennsylvania that in absence of an agreement to educate "a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate earning capacity or income to enable him to do so without undue hardship to himself." Emrick v. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchison v. Hutchison, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child's college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).
Id. at 24-25, 435 A.2d at 200-01.
The child in question must also possess the aptitude and the desire to successfully complete the course of studies he has chosen to pursue. Kopp at 110, 518 A.2d at 590.
Unlike the above-described situation concerning a disabled child, this responsibility is not based upon the child's inability to support himself. However, we recognize that many children...
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