Kelly v. Kelly
| Decision Date | 19 November 1993 |
| Citation | 430 Pa.Super. 31,633 A.2d 218 |
| Parties | Ronald KELLY, v. Diane KELLY, Appellant. |
| Court | Pennsylvania Superior Court |
Patricia M. Dugan, Philadelphia, for appellant.
Ronald Kelly, appellant, pro se.
Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
Diane Kelly, mother, appeals the February 5, 1993 Order denying her exceptions to the recommendation of the permanent hearing officer requiring her to pay $30 per week support to Ronald Kelly, father, for the care of their son, Ryan, born June 29, 1975.
Father received custody of Ryan on June 24, 1988 and, on April 12, 1991, filed a petition seeking support. On July 2, 1991, the hearing officer recommended dismissal of father's petition finding that mother, at the time of the hearing, was staying home to care for her three-year old child born of a subsequent marriage and as a nurturing parent should not be required to pay support. The recommendation was based on findings that mother had not worked since 1987, however she did work as a bank branch manager for a period of approximately five years, her gross income in 1987 being approximately $19,000. Father's exceptions to the recommendation were dismissed by the trial court on April 1, 1992. Although the trial court accepted the hearing officer's findings of fact, it held that, at some point, mother should be required to meet her responsibility to provide support for Ryan. As such, the trial court remanded the case for a new hearing to determine when mother could return to work to otherwise provide support for Ryan.
The new hearing was held on November 17, 1992, and the officer determined mother had an earning capacity of $231 per week. As such, the officer recommended mother pay $30 per week support, effective July 1, 1991. From the trial court's denial of mother's exceptions to this recommendation, she now appeals to this Court.
Mother argues the trial court erred in assigning an earning capacity to her, thereby ordering her to make support payments. She contends the nurturing parent doctrine should continue to apply and should not cease simply because her child reached the age of three. She indicates she has made several attempts to find suitable day care for her child but has been unsuccessful. Further, mother argues she was the major source of income in her prior household, and she has an extensive work history, which exhibits the fact that she is not shirking employment. However, she has been unemployed for several years and has no training other than as a bank manager. Moreover, she argues that she was able to remain home to nurture the four children from her previous marriage and should be able to do the same with her youngest child.
The scope of appellate review in child support cases is very narrowly defined. O'Connell v. O'Connell, 409 Pa.Super. 25, 597 A.2d 643 (1991). This Court will not disturb a child support Order absent an abuse of discretion, which is not made lightly and rests upon a showing of clear and convincing evidence. Id. This Court has held an abuse of discretion occurs if insufficient evidence exists to sustain an award or if the trial court overrides or misapplies existing law. Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990). It is also well established that both parents are equally responsible for support of their children. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). In determining a parent's ability to provide support, the focus is on earning capacity rather than on the parent's actual earnings. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988).
In appropriate cases, however, the earning capacity of a parent who elects to stay home with a young child need not be considered when calculating support. Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992). This nurturing parent doctrine excuses the parent from contributing support. When applying the doctrine, a trial court must consider "the age and maturity of the child, the...
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