*2 CERCONE, MONTEMURO, Before POPOVICH JJ.
MONTEMURO, Judge: an appeals from presented
In this case are with cross we requiring and child order spousal undifferentiated $3,932 month for the Coffey per Coffey pay Louis to Nora minor parties’ of herself and the two reasonable for the children’s children, payment direct provide and dental, tutoring and tuition costs. of an award note that we will reverse
Preliminarily we sug- if circumstances support only surrounding spousal making its discretion that the trial court has abused gest 504, 544 Goodman, Pa.Super. 375 v. award. Goodman (1988). 1033 A.2d
Further, similarly, there is unless
No child order will be disturbed has sustain the order or there insufficient evidence to court. Ritter v. by of discretion lower been an abuse 12, (1986). “An Ritter, abuse Pa.Super. 359 if in of but ‘merely judgment, discretion is not an error misapplied, is overridden or reaching a conclusion law unreasonable, or manifestly or the exercised is judgment ill-will, or as shown partiality, prejudice, the result of bias
197 record, by the evidence or the discretion is abused.” Fee Fee, 276, 279, 344 Pa.Super. 793, 496 (1985). A.2d Parker, 457, 461, Steenland-Parker 375 A.2d parties
The to the case were married in separat- ed in 1986 when Louis Coffey departed the marital resi- Appellant dence. Nora Coffey years is 48 old. She attend- college ed years, about three but discontinued her appellee’s education at request before receiving degree. her Appellant’s employment history has been limited. She worked as a university research assistant prior to and for a short time marriage, after her and held position a similar 1977-78, during leaving that employment she when under- not, went a hysterectomy; then, she has since held a paying position.
Appellant’s primary involvement outside the home has, since been with a non-profit information service known as HERS (Hysterectomy Educational Resources and Services), of which she is the founder. The idea for this organization grew out of the problems medical experienced following her own surgery, debilitating bone and joint pain which diagnosed was eventually as fibromyal- gia.1 Her HERS, duties regard most of which have since been assumed volunteers paid employees, were of the originally administrative variety, but are re- now stricted fibromyalgia symptoms to telephone some work, organizational some efforts involved with conference planning, and some writing and oversight editorial *4 HERS newsletter. Appellant also suffers from osteoporo- sis in her right hip. She resides with the parties’ teenage children in residence, the marital and apart appellee’s from contributions, has no income.
The marital residence is itself the center of a controversy, as party each acquisition, attributes its approximately a year prior separation, to to the insistence of the other on not, disease, Fibromyalgia 1. strictly speaking, is syndrome, a but a apparently reactions, diagnosable only which is pain in terms of and susceptible is not laboratory to measurement. house, more accommodations. The luxurious a six bedroom $250,000 is in the purchased residence located Bala Main Line suburban óf community Cynwyd, $1,720. monthly mortgage payment carries of a old, practicing is 50 a is Appellee years attorney who a in a firm. In prestigious Philadelphia senior law partner practice, gross addition to his from which his distribution $245,000, real appellee 1986-87 was is involved several amounting he income estate ventures which derived $10,000. $56,000. earnings had Appellee also interest of $311,000. earnings period His for the was therefore total no health time of Appellee problems. has known At the renting living premises place he was near his of hearing, work.
The of parties present us with the obverse and reverse trial questions: the same whether the court committed or too by attributing great error too reversible earning support, small an whether the amount of capacity; (especially) appellant and thus the reasonable of children, small; too or too great and the wheth- parties’ was appellee’s er income was over or underestimated. available issues, having re- addressing In these we note after case, parties record in arguments viewed the this law, that, find for the which and the we reasons applicable follow, discretion, having in fact its the trial court did abuse of understanding its decisions on a mistaken based misreading the facts. governing legal principles, a of The court the deductions from income accepts gross trial the law appellee having offered as been mandated offering firm is his even an about employer, apologia which contributing appellee’s policy adherence to the firm’ political activities. The deduc- largely to charitable and tions, contributions, mileage include such well as $17,000 approximately total expenses, entertainment annually.2 listed as follows: These deductions are $8,350 Charitable contributions 1,200 Political Action Committee
199 4302, “net statute, defines 23 Pa. C.S.A. Support The § other deduc any minus taxes and as “Gross income income” of employ a condition employer tions mandated offered legislative guidance is no Although ment.” there statute, the contemplated by sort of deductions as the relating sup Rules of Civil Procedure adopted recently deductions. limitations on allowable place actions do port following items 1910.16-5(b)3 specifies only Rule the net income to calculate which gross are subtracted determines amounts: taxes; federal, state, local income
1. pay- retirement non-voluntary 2. F.I.C.A. payments ments; dues; union
3. for the benefit of the premiums 4. health insurance or the children. party other him, in order to requires
If of appellee’s employer indeed deducted payments his the sorts of employment, maintain difficul- court, seem to be serious the trial there would If, on the other of these exactions.4 legality ties with hand, other are voluntar- payments these contributions and of the continuing to assure the success ily by appellee made largesse, firm’s then recipients they with the of the practice calculating support purposes are not deductible at all for Moreover, there is offered obligations. partner- no mandatory payments, that these are
proposition
they
or other document which states that
ship agreement
2,000
Contribution
Political
3,500
Business Entertainment
1,540
(Unreimbursed)
Mileage
Business
30,
September
effective
1989. The order
3. The new Rules became
1988,
being challenged
November
in the instant case was entered
appeal
appeal lodged
The
was thus
and notice of
December
1988.
governed by
operational,
pending
Rules became
and is
when the new
See,
Moore,
A.2d 250
them.
Moore v.
Demanding Property
e.g.,
to secure em-
18 Pa.C.S.A. 7322.
§
ployment.
are a condition of employment.5
court,
Even the trial
at
accepted
appellee’s
face value
assurance as to the neces-
*6
sity for the contributions noted that
the donations were
“recommended” rather than required by the firm’s Execu-
(T.C.O.
9).
tive Committee.
at
The law is well settled that
the amount of a
upon
award is
earning capacity,
based
less reason
expenses,
able
not
cash
merely
flow. Commonwealth ex
Goichman,
rel.
311,
Goichman v.
226
316 A.2d
Pa.Super.
(1974). Therefore,
653
steps taken to reduce income for the
purpose
avoiding
or decreasing support are ineffective
insofar as diminishment of the obligation
is concerned.
Akers,
1,
(1988);
Akers v.
373 Pa.Super.
Shutter may punitive While orders not or confis be sacrifices in aid of catory, achieving goal the support may demanded. All Kaplan, supra. be of which leads us to the question of organiza whether contributions to charitable tions, regardless worthiness, of their political contribu tions, despite public spiritedness demonstrate, they as well business entertainment and are of mileage, suffi- Appellee’s mandatory plan capital contributions to a retirement comptroller. fund are outlined in an affidavit from the firm’s Pre- therefore, sumably, pay- were documentation available for the other forthcoming. ments it would have been importance cient appellee’s overcome claims of family upon earnings. his We find that not. they are award,
In his challenge to the trial court’s his including family demand his move into an apartment, appellee contemplates an absolute reduction in the standard of living his enjoyed during coverture, wife and children re gardless of whether the standard was set the house in Cynwyd, previous Bala or the one in Airy.4 Mount While appellee may not be for penalized choosing to work where he is strongly participate advised activities such as income, those he wishes to exclude from he must neverthe less face the consequences when it becomes clear that his income potential need not take account of such recommen dation. His donations cannot form the basis an insis home, tence that his leave the or family marital that they *7 alter the kinds drastically and amounts of they may reasonably Weiser, incur. We held that this supra, is improper, especially insistence where the has respondent himself not suffered from financial noticeably deprivation. order, the appellee Under trial court’s herein would have $36,000 in approximately tax free income after meeting his living expenses both own and those of his family’s which would, have accepted been as reasonable. We in disallow ing deductions, the claimed appellee remind of the old adage that charity begins at home.
Consistent seeming with its determination to main tain appellee the to which he has style become accus tomed, $56,000 the trial court excluded from its calculations received in 1987 from appellee the sale of some limited partnerships, on the that ground they productive were not income, of annual properly and were therefore more con sidered in equitable proceedings. distribution As we stated Despite appellee’s depiction family’s previous existence as modest, extremely parties' the trial court found that the vacation had (T.C.O. 23) Further, assuming been "luxurious.” at even that was, Airy living, house in Mt. was reflective of a different scale of it out, appellee points large, 38), (Appellee’s a comfortable house Brief at apartment. not an context, at insofar as child is support
in another least concerned, source, is to evaluated as
All income from whatever be financial resources and interests as of property well as support payments sought. time at are 274, 279, Leedom, Shindel Parker, also, supra; See Steenland-Parker Fichthorn, appellant 4302. In supra, 23 Pa.C.S.A. § neither argued salary guaranteed that bonuses which were not of his income part nor within his control to confer were disagreed, again principle We on support purposes. income, and if in fact did they unarguably they that were recur, could for a reduction of his appellant petition not The is true of the instant situa- support obligation. same tion.
Next, agree appellant we would allocated, as the tax implications order should have been to either the children further reduce the amount available entered to a pursuant or Because the order was appellant. applicable under Rules of Civil Proce- complaint dure, either as to its child immediately appealable it is spousal support component. or its support component 1910.16(b). recognize The trial court’s failure to Pa.R.C.P. parties’ and the disadvantage the financial children, of its consequent advantage appellee and the oversight constitutes an which exac- undifferentiated order the court in of discretion committed erbates abuse find that this allowing the deductions discussed above. We *8 1910.16-5(e). error must remedied. Pa.R.C.P. be on the that the grounds We also find for reversal basis fact. As incorporates trial court’s order obvious errors of $1,297 out, per order month appellant points the attributes is figure on the marital residence. This mortgage the $2,413, payment original monthly payment, neither the refinanced, $1,720, or any due since the was mortgage Moreover, the trial of the two. the taxes which combination mortgage payment, are included in the are not. court states errors is The combination of these substantial. out, neither the application of points appellant
Finally, 505 Pa. Witsberger, in Melzer v. formula Support Guide- County Child Montgomery (1984), nor the This omis- order. undifferentiated from the lines is evident for reversal. Shutter sufficient alone would be sion However, have been county guidelines supra. Reilly, Rules in Procedural appearing those superceded by latter, in actions; therefore the it is governing of the case Melzer, circumstances and the with' conjunction Lesko, Super. 392 Pa. considered. Lesko must be A.2d 780 disagreement between significant most The area of appellant court’s attribution the trial herein is parties claims appellant $15,000 earning capacity: per year of a unem condition as to be her she is so debilitated that has the trial court argues appellee ployable, while incapacity. Appellant, his wife’s underestimated grossly in the early years dozen doctors at least a having seen after until illness, diagnosed not nevertheless of her was pain some relief from found in the meantime having name, after a fibro Even treatments. weekly acupuncture experienc she was symptoms attached to the was myalgia, in demon cooperative totally less than she has been ing, court, physi her own declining her claim to the strating scan, refusing to be exam of a bone suggestion cian’s the medical Predictably, both expert. by appellee’s ined party mirror the views experts and rehabilitation disagreement, less were there introducing them. Even are, in not general, recognize, parties both facts which little work old with fifty years is close to appellant hopeful: education, uncertain health. higher minimal history, appellant’s determination as to However, making its this principally, relied trial court prospects, accomplishments, own upon appellant’s correctly, instance foundation. the HERS in connection with her work notably abili- limitations, organizational has Whatever her her physical Whether intelligence. and considerable ty depend upon any these will her to exercise permit state will *9 improvement wrought by an end to this litigation, whether she can find a market for her skills. She is required to direction, but, make an effort in this as we stated regard appellee’s income, with should the situation change, recourse to the courts for modification is an avail- able alternative. with,
Reversed and remanded for proceedings consistent this Opinion. relinquished. Jurisdiction
POPOVICH, J., files a concurring and dissenting opinion.
POPOVICH, Judge, concurring and dissenting. This case involves cross-appeals (child from the order of and spousal) support entered by the Court of Common Pleas of Montgomery County (per Davenport, J.) in favor of Nora Coffey and her two children and against Louis Coffey. follow,
For the reasons that I join cannot in all of the Majority’s start, conclusions. To I have examined the sup- port order under an abuse of discretion standard. See Fee Fee, 344 Pa.Super. so, In doing I have (of examined the trial transcripts 600 pages) generat- ed by trial, the 4-day nonjury as well as other relevant presented documents parties to buttress respec- their tive arguments. I
Initially, would observe that I agree cannot Majority’s determination that the trial court’s allowance the husband’s charitable and business expenses, calculat- ing income, his net was error. There is evidence record that firm law for whom the husband worked “expected” of the firm members to allocate a specific per- centage of their salary for charitable purposes backed by firm, and that the amount was automatically deducted wages one’s each pay period. As for the deductions allowed the trial court for the husband’s business enter- tainment and this mileage, could be attributed to the “cost of doing business”. (and parlance), street in perspective the matter put
To *10 clients, existing prospective the had to cater to husband this business perpetuate create or which to by and a means (be it in a to entertain money by expending was relationship factor context). This is a social, or charitable political granted and is even fantasy than reality is more a Inter- the by of such deductions the allowance by credence Thus, Majority the to the extent that Service.7 nal Revenue by incurred “operating” expenses disapprove of the would and, turn, business, doing of as a means the husband of the law hierarchy in the position his improve maintain or as did the court below. firm, the same I would allow the to allocate of the trial court’s failure question theOn the payments, child spousal and order between support had offered that the husband given is resolvable matter case) in the point at one agreed had (and wife/appellant the tax negative discount the return. This would joint to file a order. support from a non-allocable flowing consequences relations in domestic However, the situation as is so often generates the other cases, spouse by of one spurning the little, cooperation if any, two that between the enmity such Tax”) ("Your Internal of the Federal Income See Publication 17 Service, charitable contributor to deduct which allows a Revenue limits, contributions, organiza- qualified subject made to a to certain receiving charities at trial that the There was no indication tion. "qualified organizations” not money firm were from the husband’s Thus, by payments from the husband exacted federal tax law. under his law firm, properly wages, were from his as a matter of course (to preserve his legitimate expense as a the trial court allowed firm). position the Also, for deductions entertain- the Internal Revenue Service allows income”, Id.; production of expenses "incurred for the ment existing accounting attempt to endear himself that his husband’s lunches, the form of prospective itself in clients manifested sponsored tickets for events banquets purchasing of various their existing prospective client warranted or or endorsed deductibility. cost of such allows for the Revenue Service Given that the Internal deductions, why the same should I see no reason form of items in the purposes. There calculating income for apply one’s net not intentionally exposed husband proffered that the was no evidence “spenda- diminishing purpose his to such himself thus, assessing income, and, picture in painting a false financial ble” obligations. his is forthcoming to ameliorate any (resolvable) prob- lems, they be in the tax area or in the allocation of monies or resources.
To the .extent that the court may below have erred in calculating various deductions {e.g., mortgage payment), a remand is appropriate to rectify the mistabulation. I
Lastly, conclude, court, as did the trial wife/Nora Coffey is Her “employable”. past experi- work ence and extensive involvement in the HERS Foundation (established by 1978-79) Nora in prompts this writer to (as agree did the court below on question of the credibil- ity of the experts presented by parties) both that Nora Coffey does have skills that are transferrable to the market *11 place. To say otherwise would be to ignore totally her educational and work background recounted with specificity in the trial opinion, court’s not to mention the day-to-day involvement of Nora in the Coffey operation of the HERS Foundation as a counselor and the driving force as to its inception, perpetuation ongoing annual conferences held Foundation.
I see no reason to disturb trial court’s credibility findings, subject a which is within the trial court’s bailiwick and not to be disturbed where the record is supportive of its findings of fact and conclusions of law.
As this Court has done in the past, there is no reason to think that the appellant/wife, she makes the effort to once secure employment, and is either unsuccessful or the mo- paid nies for the position obtained falls short of the trial court’s estimated “earning to capacity”, come back into court to seek a modification of order. e.g., Mazzei v. Mazzei 331 There is nothing law would foreclose the wife petitioning court to review her employment effort and having the projected “earning capacity” assigned her court altered premised on the reality of her at- tempts) to obtain a job. Id. concur stated, I respectfully herein
For the reasons Majority. the actions part and dissent part Pennsylvania COMMONWEALTH BLAIR, Appellant. Denise Pennsylvania. Court of Superior 26, 1990. Feb. Submitted May Filed