Shutter v. Reilly

• Decision Date: 14 March 1988
• Citation: 372 Pa.Super. 251,539 A.2d 424
• Parties: Brenda SHUTTER, Appellant, v. Thomas V. REILLY, Appellee.
• Court: Pennsylvania Superior Court

Page 424

539 A.2d 424

372 Pa.Super. 251

Brenda SHUTTER, Appellant, v. Thomas V. REILLY, Appellee.

Superior Court of Pennsylvania.

Argued Sept. 3, 1987.

Filed March 14, 1988.

[372 Pa.Super. 253] Chere Winnek Shawer, Indiana, for appellant.

Before BROSKY, TAMILIA and KELLY, JJ.

KELLY, Judge:

Appellant/mother raises this appeal from a trial court order granting appellee/father's petition to modify (reduce) his child support obligation. Appellant alleges the trial court erred by failing to use the appropriate county support guidelines in fashioning its award, and in excluding from the list of appellant's expenses mortgage, utility and automobile payments. We agree with appellant that the trial court erred in both instances. Accordingly, we vacate the order of support and remand this matter to the trial court for recomputation of the support award in accord both with the county guidelines and the formula set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

FACTS AND PROCEDURE

Appellant, Brenda L. Shutter, and the appellee, Thomas V. Reilly, were married in 1971 and divorced in 1984. Two children were born during the marriage; appellant retained custody of both children upon divorce. Appellee originally paid $1,000.00 monthly in child support pursuant to a property settlement agreement incorporated into the divorce decree.

This support provision was modified on March 12, 1986 pursuant to a consent order; appellee's monthly obligation was reduced to $500.00. That monthly amount was scheduled to increase to $600.00 commencing July 1987, and to $700.00 in January 1989.

One of the two children moved in with appellee sometime in the autumn of 1986. Appellee then filed, in November 1986, a petition for modification (reduction) of child support payments based upon this changed circumstance of the children's living arrangements. A hearing on the petition was held before the Domestic Relations officer on December 16, 1986, and an order was issued on December 18, 1986; this order reduced appellee's support obligation by one-half to $250.00 monthly. Appellant appealed this order and requested a hearing before the court. Pa.R.C.P. 1910.11(f). The hearing was held on January 13, 1987; the court issued its order on February 13, 1987 affirming the previously modified support order of $250.00 monthly. The court rather simplistically based its affirmance in part on the fact that appellant was supporting one child rather than both children. This appeal from that order was timely filed.

Appellant contends: (1) the trial court abused its discretion in setting the award of support without considering and making reference to the support guidelines of Indiana County; and (2) the court erred in refusing to consider the cost of housing, utilities and transportation as part of the necessary and reasonable expenses of raising a child. We agree with appellant with respect to both contentions and, therefore, we vacate the order of support, and remand to the trial court for proceedings consistent with this opinion.

I.

A.

At the outset, we note that there were material changes in circumstances which would justify modifying the support order. In a petition to modify a support order, the petitioner carries the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order. Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518 (1987); Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220 (1984) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)). The trial court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate whether the petitioner did or did not meet the burden of proof as to changed circumstances. Koller, supra, 481 A.2d at 1220; Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). We agree with the trial court that appellee established a sufficient change in circumstances by reason of the fact that his son had moved in with him. Thus, reconsideration of the support order was appropriate. We note that appellant introduced evidence to demonstrate that her circumstances had also changed in that her household expenses had increased since entry of the consent order.

B.

We agree with appellant that the trial court abused its discretion in entering a modification of the support order based upon the established change in circumstances without referring on the record to the support guidelines promulgated by Indiana County. These guidelines, effective January 6, 1986, were formulated in response to 23 Pa.C.S.A. § 4322, which provides:

§ 4322. Support guidelines

The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention.

Although our standard of review is such that we will not overturn a child support order unless the court abused its discretion in fashioning the award, such abuse will be found where there is insufficient evidence to sustain the award or where the law is overridden or misapplied. Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). The support guidelines are to be considered both in entering the original support order, and in entering a modified order. Palmatier v. MacCartney, supra; Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 513 A.2d 448 (1986). The guidelines are to be consulted by the court so that the suggested amount of support is, at a minimum, given due consideration and so there may be uniformity of awards for persons similarly situated. In this case, the trial court clearly failed to apply the law embodied in Section 4322. This was error.

The dissent states that: "If the Order appears well considered, fair and nonconfiscatory, it should stand, notwithstanding a failure of the trial court to refer to the guidelines on the record." (At 434). We find that viewpoint to be misguided; the statute is clearly worded as a mandatory provision (e.g. "The courts ... shall develop.... the guidelines shall be based ... The guidelines shall place primary emphasis ..."). If we were to follow the dissent's suggested analysis, we would essentially render the statute a nullity. We would allow courts to ignore the very guidelines they are mandated to promulgate. This we decline to do. Rather, we presume, as is our duty, that the legislature intended the statute to be given its full effect. See 1 Pa.C.S.A. § 1922(2).

Accordingly, we must remand the case for appropriate calculation of the support needs of appellant's custodial child, and entry of a new support order. Reitmeyer, supra; see also Forry v. Forry, 359 Pa.Super. 602, 519 A.2d 516 (1986); Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986).

C.

Appellant relies in part upon the case Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), in support of her contention that the amount awarded to her was inadequate. Appellant's analysis is correct. The interplay of the application of both Melzer and the county guidelines promulgated pursuant to Section 4322 has recently engendered some discussion among bench and bar, as the dissent notes. Initially, we reiterate that:

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.

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However, a majority of the Court eschewed strict mechanical formulas and endorsed a flexible approach in these areas. 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).

DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). (Emphasis added). Thus, the Melzer formula must be calculated in each support case and referred to by the court if it decides to deviate therefrom.

Section 4322 was promulgated after Melzer but it has not superseded Melzer. This Court has commented that "the considerations set forth in the statute are precisely those which Melzer held that the courts of common pleas must use in formulating support orders." Reitmeyer, supra, 513 A.2d at 452 n. 3. Moreover, Section 4322 has been called a legislative endorsement of the Melzer approach. Ryan v. DeLong, --- Pa.Super. ----, ----, 538 A.2d 1, 2 (1987) (Section 4322 "requires an individualized determination.... These were the very concerns of the Melzer court." At ----, 538 A.2d at 3 (...