Riess v. DeLuca

• Decision Date: 06 June 1986
• Citation: 353 Pa.Super. 622,510 A.2d 1239
• Parties: Walter F. RIESS, Jr., Appellant v. Theresa DE LUCA.
• Court: Pennsylvania Superior Court

Page 1239

510 A.2d 1239

353 Pa.Super. 622

Walter F. RIESS, Jr., Appellant v. Theresa DE LUCA.

Superior Court of Pennsylvania.

Argued June 4, 1985.

Filed June 6, 1986.

Richard A. Mitchell, Media, for appellant.

Heather K. Douglass, Drexel Hill, for appellee.

Before WICKERSHAM, BROSKY and TAMILIA, JJ.

BROSKY, Judge.

This appeal is from the order requiring appellee to place $10 a week into a bank account for the educational needs of the parties' two minor children. Appellant contends that: (1) the trial court erred in refusing to follow the guidelines for support that have been set forth by the Pennsylvania Supreme Court; (2) the trial court erred in questioning appellant's candor and finding that appellant was attempting to punish appellee for exercising her right of visitation; (3) the record contains ex parte documents prejudicial to appellant. We agree with appellant's first contention and, accordingly, vacate the order of the trial court and remand this case for a recalculation of the parties' support obligations.

The parties to this action were married in January of 1970. Two children were born of this marriage, Jacquelyn, born July 29, 1971, and Michelle Lynn, born September 7, 1974. The parties were divorced in September of 1981, at which time they both resided in New Jersey. Prior to the entry of the divorce decree, the Superior Court of Burlington County, New Jersey, had issued an order awarding custody of the children to appellant. As part of the divorce decree, the New Jersey court ordered appellee to put $10 per week into a bank account for the educational needs of the children.

Subsequently, the parties moved to Pennsylvania and, in June of 1982, appellant filed a support action in Philadelphia County. This action was dismissed for reasons not revealed by the record.

On March 2, 1984, appellant filed a complaint for support in Delaware County. A hearing was then held before a master who recommended the entry of a support order in the amount of $65 per week. Following entry of the recommended order, appellee filed a timely appeal, and a hearing de novo was held before the trial court on June 13, 1984. Subsequently, appellee petitioned for a rehearing in order to have the opportunity to introduce additional evidence in light of the Supreme Court's opinion in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). A rehearing was held on November 1, 1984 and, on December 19, 1984, the lower court entered an order requiring appellee to pay $10 per week into a bank account for the educational needs of the children. This appeal timely followed.

Appellant first argues that the court below erred in refusing to follow the guidelines set forth in Melzer, supra, for the calculation of a parent's support obligation. We agree.

In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent's total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent's total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.

In the instant case, the court below made none of the determinations mandated by Melzer. We must summarily reject appellee's argument that the hearing court did, in fact, apply Melzer, but that its statement that "we are convinced that the Respondent [appellee] is paying her fair share towards the support of the children" was equivalent to a finding that she had no ability to pay any amount in addition to the amounts she was already paying. We are hardly persuaded that the hearing court's conclusory statement that appellee was paying her fair share was equivalent to a finding that her income available for support, as defined in Melzer, was zero. Moreover, appellee's argument flies in the face of the trial court's express statement in its opinion that:

We are not unmindful of the recent Superior [sic] Court decision of Melzer vs Witsberger, 480 A.2d 991, Pa. (1984). However, we do not feel that the rationale is approximate [sic] here. First, there [sic] is a Petition for an increase in support as there curently exists a New Jersey Court Order which is being obeyed. Secondly, the rationale of Melzer, supra, would not take into consideration the $35.00 per week that the mother currently contributes, nor would it include the $10.00 per week Order currently being paid.[ ¹

Since the court below did not follow the dictates of Melzer, we will remand this case for the court to make determinations necessary to an application of the Melzer formula, ² to determine whether and by how much the support obligation arrived at by that formula should be offset by appellee's voluntary contributions, and to use the amount of support thus arrived at as a framework for its decision. It is so ordered. ³

Order vacated and case remanded for proceedings consistent with this Opinion.

TAMILIA, J., files a concurring opinion.

TAMILIA, Judge, concurring.

I concur in the result, agreeing that the court failed to follow the guidelines established in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Although a remand is appropriate, in light of the lower court's failure to understand the applicability of Melzer to the present facts, I think it would be instructive to both fully explain our application of the Melzer guidelines to the specifics of this case and discuss the resolution of problem areas where they arise.

The premise on which a determination of support obligation rests is that parents must share, based on, inter alia, their respective resources, the expenses of raising their children. Melzer, supra. The obvious difficulty lies in examining all pertinent factors to arrive at a number appropriate and equitable to payor/parent and to the child.

In this support proceeding, the only amounts that have been established of record, upon which there can be a determination as to the father's ability to pay, according to the Melzer guidelines, are gross income of $43,000 yearly and net income of $1,989 monthly. The income of appellant's wife ($5,200 per year net), must likewise be considered, providing a gross income of $48,200 upon which to calculate support as to the father's share. The amount of $27,000 has been established as the mother's gross income for support purposes.

Support obligations are not, however, based on gross income, but must be determined from income available for support, which is the net income less the reasonable living expenses of the parents. ¹

Another fact which must be established is the needs of the children. Failing to establish a dollar amount for the childrens' needs, any attempt to apply the Melzer formula would be fruitless, and the final determination of the respective support obligations would be without a rational basis. In this case, the needs, as expressed by the father's figures, amounted to $222 per week. I believe the figure of $222 to be somewhat inflated. The share attributed to a ten year old and a thirteen year old for the mortgage payment ($92.30 per week), utilities ($13.45 per week), automobile ($20 per week), appear out of line with the portion which would be actually consumed by the children. However, the parties agreed this was a reasonable estimate of the needs of the children and because of the substantial income available to the parties and their standard of living, I would accept that figure.

A calculation of the support contribution from the mother, if she has the ability to pay, should be based on reasonable extrapolation of the $222 amount. A $143.83 monthly expenditure for the children, alleged by the mother/appellee, was regarded by the court as her fair share of their maintenance, given the disparity in the parties' incomes. In addition the mother alleged an amount of $40 per month for gifts for the children and a $10 per week contribution to an educational fund based on a New Jersey Court Order. The mother's testimony indicated she contributed this amount primarily during the period of six weeks partial custody during the summer and on weekly visitations.

The $143.83 and $40 per month for gifts paid by appellee, which is in effect a voluntary contribution along with the $10 per week to the educational fund, do not meet the requirement that the custodial parent have a predictable and consistent flow of (supplementary) revenue. The determination necessary concerning the offset of $143.83 and $40 expended monthly for the children, is whether these expenditures actually provide for necessaries. The lower court failed to make this finding. While Melzer does acknowledge that a portion of a parent's support obligation may be satisfied by the provision of support directly to the children, here, the total contribution by appellee would be provided on a direct basis. The trial court abused its discretion in finding that expenditures of this type totally satisfied appellee's support obligation.

Although appellee claims that the dispersion of these sums is necessary at least in part because of appellant's derelictions in his care of the children, the question of if, or how well he is meeting their needs is one to be resolved in a custody...