Commonwealth Ex Rel. Caswell v. Caswell
421 A.2d 762
Pa. Super. Ct.
1980
Check Treatment

*3 SPAETH, Before SUGERMAN, STRANAHAN and JJ.* SUGERMAN, Judge:

Appellant (“Father”) appeals an order of the lower court dismissing petition to reduce a support order. The facts to our necessary are disposition simply stated.

Father and Appellee (“Mother”), in May, divorced are the parents of two daughters, years and 15 age the date of the hearings 4, 1977, below. On October an existing order for the the two was girls modified by agreement, and Father was directed to pay the sum of per week as $100 At or support. about the time of the entry order, Father, the modified 39 years of age, reputedly earning approximately salesman, as monthly but March, 1978 he lost such employment. thereafter,

Two months on May Mother filed a order, to increase the support and on June Father filed an answer and cross-petition to reduce the order. The were petitions consolidated and heard by Judge HONEYMAN of the court below on July At the hearing, Father testified that he was unem- yet ployed, although utilizing the services of several employ- agencies ment and a number of friends an effort to obtain employment. Father also testified that he owned no assets other than a small balance in one checking and one savings account, automobile, an an interest in some household furnishings. Father further testified that he had no income from any source. Mother testified that since date the. *4 modified order, her had earnings increased sum by the of weekly. $15

At the conclusion of the hearing, Judge HONEYMAN found that the increase in Mother’s earnings offset such slight additional income as she might required have the of support children, the and on that he basis dismissed Mother’s petition to increase.

* Judge STRANAHAN, President JOHN of the Court of Q. Common County, Pennsylvania, of Judge Pleas Mercer and LEONARD SUG- ERMAN, Pennsyl- County, of the Court of of Common Pleas Chester vania, sitting by designation. are earning capacity found Father’s HONEYMAN also Judge order, and of the agreed the entry had not diminished since circumstances, change that there had been no substantial Accordingly, then lack income. Father’s notwithstanding order. reduce the support he to petition dismissed Father’s order HONEYMAN’s Judge did not from appeal Father Judge to 5 weeks subsequent on some August but to reduce the petition second HONEYMAN’s order filed a BROWN by Judge was heard petition order. The 3, the lower court on October receiving that he was

At Father testified hearing, the become having in the sum of public monthly, assistance $173 5, that since on 1978. Father also testified eligible August living the date of HONEYMAN’s order he had been Judge cards, the of his and had thus incurred substan- use credit that physical prob- tial debt. Father also testified several HONEY- entry Judge lems had “flared since the up” order, incur and dental MAN’s him to medical causing since that the total debt incurred expenses. Father testified inwas the date of the HONEYMAN hearing the sum of approximate $3000. no

At the conclusion of found hearing, BROWN subsequent in Father’s circumstances to the date order, basis, on and that dismissed Judge HONEYMAN’s Father’s to reduce. 1925(a),

In its filed to Pa.R.A.P. opinion pursuant the following language: lower court reiterated its “On both the defendant July and October income, savings. no had no source of unemployed, month in 1978, he has received August per Since assistance. The defendant has suffered from colitis public However, back for a number problems years. his work in ability neither of these ailments to impair sugges- and sales. There was no field-advertising chosen needs of the children have tion at the are this Court presented diminished. Since the facts find no reason identical to those on we existing disturb the Brief at 13. Appellant’s order.”

364 appeal, arguments: (1)

On Father advances two the lower court in permitting committed error Judge BROWN to hear reduce, Father’s second to rather petition than the assigning to matter Judge HONEYMAN who heard Father’s first petition, (2) the lower abused its discretion to failing find a Father’s circumstances the period during the between first and second hearings.

I. Father first on contends that the court appeal lower erred in permitting Judge BROWN to hear his second to reduce, rather than matter assigning the HONEY- MAN, who heard his first petition. correct,

Father is and we must once note that again the practice of granting rehearing before a other judge than the one who the heard case in first is instance not the in the Brake, best interest of the parties. Brake v. 271 n.2, 413 A.2d n.2 Com Hirsch, monwealth ex rel. Schulberg Pa.Super. 179, 344 A.2d 530 (1975); Bell, Bell v. 228 Pa.Super. 323 A.2d 267 (1974).

When available, the original is he or she judge should be the one to whom questions directed, all of modification are as it is such is judge who most familiar with the case and

most qualified to determine whether a is modification war- ranted under the circumstances. ex Commonwealth rel. Schulberg Hirsch, supra Pa.Super at 344 A.2d at 531; ex D’Alfonso, rel. D’Alfonso v. 71, 121 A.2d we

Although firmly remain committed to this principle violation, and do not condone question its of whether the failure be guided principle constitutes reversible error is quite us, different matter. In the case before we find it does not.

We have reviewed the thoroughly transcripts hear- ings held BROWN, HONEYMAN and Judges find that Father virtually repeated earlier testimony *6 the hearing BROWN. BROWN was thus able evaluate Father’s circumstances at the of time the first and was therefore in a position to deter- mine whether those circumstances had at the date changed of the second hearing. Father has neither nor shown argued prejudice and we find none.

II. It will be recalled that Father also contends that Judge BROWN abused his discretion in failing to find a of change circumstances in his second dismissing petition to re- duce. nature,

When reviewing proceeding a of this our scope limited, review is and we will not interfere with the determination of the court below unless has been there a clear abuse of discretion.1 Commonwealth ex ReDavid rel. ReDavid, v. Bell v. 103, 251 Pa.Super. 380 A.2d 398 (1977); Bell, 280, 228 Pa.Super. 323 A.2d 267 (1974), both quoted Brake, with approval Brake v. 316, 271 supra, Pa.Super. at 423; ex 413 A.2d at rel. Hartranft v. Har tranft, 572, 267 Pa.Super. 407 A.2d 389 (1979). A abuse is not lightly made but a only upon of clear showing Commonwealth ex rel. Hartranft evidence. convincing v. Hartranft, 574, 390; 267 supra, Pa.Super. at 407 A.2d at Commonwealth ex rel. v. McQuiddy McQuiddy, 238 Pa.Su 390, per. (1976).

A court increase or may decrease an order support if the financial conditions of the parties change, or Aber, where other proper v. reasons are assigned. Cyphert 272 Pa.Super. 112, 114, 695, 414 A.2d (1979), 696 quoting Commonwealth ex Kaplan rel. v. Kaplan, 219 Pa.Super. 163, 165, 456, 280 A.2d Commonwealth ex rel. Del- (1971); 457 168, In Levy Levy, Pa.Super. Commonwealth ex rel. v. 240 361 A.2d (1976) merely 781 we defined an abuse of discretion as “... not an judgment, reaching error of but if in a law is conclusion the overrid- misapplied, judgment manifestly den or or the exercised is unreason- able, partiality, ill-will, or prejudice, the result bias or as shown record, the evidence or the discretion is abused.”

366

baugh v. Delbaugh, 127, 130, 717, 392 A.2d order, seeking a party modify how ever, bears the burden demonstrating such Common circumstances as will justify modification. Haertsch, wealth ex rel. v. Haertsch 284, 283, 267 Pa.Super. 406 A.2d Commonwealth ex rel. Burns (1979); Burns, 393, 400, 380 A.2d (1977). We also have held that “material and only substantial changes circumstances”, by competent as proven evidence will warrant order. Commonwealth ex of a support modification rel. Delbaugh Delbaugh, supra 258 Pa. Super, 718; Hall, Commonwealth ex rel. Hall v. A.2d at 243 Pa.Su Commonwealth ex per. 364 A.2d *7 Schmitz, rel. Schmitz v. 519, 521, 103, 237 Pa.Super. 352 A.2d 104 and (1975), that a modification be may upon based only facts appearing in the record which show permanent such change in circumstances as to such require modification. Brake Brake, v. 423; supra, Pa.Super. 316, 271 at 413 A.2d at Bell, Bell v. 283, supra Pa.Super. at 323 A.2d at 269. us, these to the facts Applying principles before with out mind, narrow scope review in we are not convinced that Judge BROWN abused discretion in Father’s circumstances between the date of first hear 18, ing, 1978, and the second hearing, October so and as materially substantially changed to warrant modification of the order.

At the date of the hearing first before HONEY- Judge MAN, assets, Father was owned unemployed, virtually no had no income, selectively and had sought employment with- out success. At the date of the second two hearing, some later, and one-half months Father’s circumstances were the same, that he was then except receiving public assistance. places great emphasis

Father fact that upon the he was unemployed at the date of the first hearing, and re mained so at the time of the hearing. second Under such circumstance, Father him argues, requiring to sum pay weekly support, as constitutes a punishment g. extreme.2 e. renders the order See confiscatory Goichman, Pa.Super. ex rel. Goichman v. Commonwealth 311, The most review of the (1973). cursory 316 A.2d 653 held Father’s first hearing upon record made at the before reveals that this issue Judge clearly HONEYMAN re litigated hearing ultimately the first fully Father, against solved Father as by Judge HONEYMAN. noted, earlier did not order but appeal Judge HONEYMAN’s chose instead file a second to raise petition endeavoring the same have held that under such issue. We repeatedly circumstances further consideration of the issue in the ab sence of a under the circumstances is foreclosed change doctrine of res See Commonwealth ex rel. Grow judicata. Grow, (1979); 407 A.2d 1361 Common Palchinski, wealth ex rel. 253 Pa.Super. Palchinski ex rel. De Medio v. De Commonwealth Medio, A.2d 609 Judge single BROWN concerned with the properly was therefore Father’s circumstances since the date question whether record of the changed. HONEYMAN’s order had that Father BROWN reveals failed demonstrating meet his burden of those circums sus- tances.3 As there is more than evidence to sufficient length in ex rel. Burns v. 2. The issue is discussed at Burns, Noir, supra. v. Le 462 Pa. 337 A.2d And see Costello *8 (1975); Judge the bench as he an HONEYMAN’s comments from dismissing petition that he nounced his order Father’s first indicated testimony concerning did not Father’s efforts to obtain find Father’s employment Accordingly, Judge based his credible. HONEYMAN See, g., upon earning capacity. e. ex order Father’s Commonwealth Burns, Burns, supra; rel. Burns v. rel. Burns v. Commonwealth ex Hecht, 189 Pa.Su 331 A.2d 768 Hecht v. per. A.2d Judge Although of the before Father’s counsel at the outset was Father’s BROWN asserted that the matter at issue order, during hearing, support sub- the the counsel retreated reduce stantially position argument in stated to the from that and final court: temporarily for to do is to “... And all we ask this court suspend this a reasonable sum so that the or lower order bad, finally get job arrearages does he won’t be so that when he court, tain of the order the lower we will not disturb it on appeal. Brake, Brake ex supra; rel. Commonwealth Delbaugh v. Delbaugh, supra.

Affirmed.

SPAETH, J., concurring files a statement.

SPAETH, Judge, concurring: At first the result in this case an appears harsh: unem- ployed father, in debt receiving and a month only on $173 welfare, is ordered to continue in paying week child However, support. I believe has SUGERMAN accu- rately stated both our standard review and the appellate law, substantive and the has reached correct result. I write separately to highlight the only very briefly portions of the record that lead me to with agree Judge SUGERMAN.

Critical to me are Judge HONEYMAN’s that findings appellant’s earning capacity had not decreased and that appellant not had been in sufficiently diligent looking for work. When failed to appellant appeal Judge HONEY- MAN’s order July these findings became res judicata. BROWN, appellant When was therefore, it his in was burden to show that the five weeks between 18 and the his second filing petition, situation materially changed. transcript makes clear that Judge BROWN believed any that difficulties appellant be in the might facing labor market were no facing paying be will an unsurmountable burden of back the arrearages keeping going the order at the same time.” R.25a apparent It requesting is to us that Father’s counsel effect arrearages during period relief from an accumulation of Father’s unemployment, permanent rather than a reduction of the past legislature order. We have said in the the has vested the powers support. courts with broad over orders Silverman, ex rel. Silverman v. 117 A.2d 801 (1956). Thus, may appropriate grant a court circumstances requested by temporary

relief Father’s counsel in the form of a order reducing periodic payable, suspending temporarily sums an order payment any sums, remitting arrearages. or an order Lyle, Lyle § Pa.C.S. 6710. And see rel. Commonwealth ex Pa.Super. 458, (1977) rel. Commonwealth ex Crane *9 Rosenberg, A.2d princi- and that July, he had faced different from those of res judicata appel- a precluded finding therefore ples decreased. Without lant’s earning capacity by incurred the increased debt earning capacity, decreased itself a was not and October between appellant Likewise, long as as material in circumstances. he was not unimpaired, appellant’s earning capacity order in the reduction temporary entitled to either arrearages. or relief from accumulated A.2d 767 Pennsylvania COMMONWEALTH BORRIS, Appellant. Joseph Francis Pennsylvania. Superior Court of Nov. 1979. Submitted Aug. Filed 1980. Appeal Denied Dec.

Petition for Allowance