Lead Opinion
Opinion by
Thе sole issue in the instant case is whether the lower court abused its discretion when it increased a pre--existing support order of $180.00 per month by $40.00 per month.
Appellant, Eilеen Weingrad, formerly Eileen Kaplan, married appellee Gary Kaplan, on December 24, 1961, in Philadelphia.
On October 1, 1974, appellant again petitioned for an increase in the amount of the support order. She alleged a change оf circumstances as a basis for the increase: her wages had been reduced from $130.00 per week to $90.00 per week, the child’s needs, especially due to mediсal expenses, had increased sharply, appellee was earning $29,500.00 per year, had purchased an expensive home in a fashionable section of New Jersey, and owned two “luxury” cars. A hearing was held on December 13, 1974, followed by an order dated December 30, 1974, in
Initially, we must reiterate several blackletter principles of law governing сhild support.
The problem in the instant case revolves around two critical facts. First, since the 1971 decree, the appellee’s salary — his sole source of income — has risen from $17,400 to $29,500. Second, although appellant’s income has declined, from $130.00 to $90.00 per week, appellant acknowledges that her earning capacity is at least $130.00 per week.
The appellant claims that in light of the luxuries that the father is able to afford — a fine home, two cars with the ancillary maintenance costs, nursery school for one of his children from his second marriage, generous allowance for entertainment and personal maintenance — he should be required to pay more towards the support of his son Michael, so that Michael, too, can share in some of the affluence.
On the other hand, a mоther also has an obligation to support her child. The test is not what her actual earnings are, but what her earning capacity is. Such has always been the law governing a father’s duty of support. See, e.g., Gitman, supra; Drummond v. Drummond,
The appellant testified as follows on the subject of her earning capacity:
“Q. Have you looked for other higher paying work?
“A. There would be higher paying jobs that would take me into Center City. I cannot do that. I would be too far from the place of residence, too far from my son.
“Q. Isn’t it true that you have refused to work anywhere in Center City where the higher paying jobs are available ?
“A. Yes.
“Q. . . . Did she [an employment counsellor] tell you that you could get a job in Center City with your skills for perhaps a hundred and fifty dollars per week?
“A. Yes.”
Further, appellee’s witness, an employment counsellor, testified that aрpellant was qualified for currently available jobs with starting salaries of $125 to $130 per week. Thus, there is no question that the mother’s take-home pay does not reflect her full earning capacity.
Ordinarily, given the father’s income, a higher support order would be proper. Although appellee claims expenses in excess of his inсome, a child cannot be denied a fair support order because one of the parents is living above his means. Further, the father is living well. He has taken on substantial mоrtgage payments; he provides generously for the two children by his second marriage; his wife can afford not to work; his list of expenses indicates that his family has considerаble material luxury. Michael is entitled to benefit from his father’s good fortune. On the other hand, we cannot ignore entirely the mother’s unwillingness to increase her income.
The case is remanded to the lower court for proceedings consistent with this opinion.
Notes
. The parties were eventually divorced. Both remаrried. The mother, however, has since separated from her second husband. The father currently resides with his second wife and with his two children from that marriage.
. The only issue before the Court is the amount of the order; the appellee does not contest his liability of support.
. See Gitman, supra, at 394,
Cf. Hecht v. Hecht,
. We are, of course, aware of the increased expenses that the mothеr would have if she were to work in Center City. The net income, even after increased travel and babysitting expenses, would, however, be greater than the money that she сurrently takes home.
. Cf. Hecht, supra at 280,
Some of the finаncial figures relevant to our decision include: Appellee Appellant
$1800.00 $360-400 Disposable income per month: (approximate)
-200 Per person: $ 450.00
Transportation expenses and
related maintenance costs: $ 312.25 $ 65.00
Food per month: $ 280.00 $ 83.00
■Food per month per person: $ 70.00 $ 41.50
Such figures are indicative оf too great a disparity between ap-pellee’s family’s life style 'and that of his son Michael. Because we recognize that inflation and cost of living increasеs have eroded some of the appellee’s salary increases, we feel too great an increase to the support order would deprive appellee and his family of the advantages of his hard work.
Dissenting Opinion
Dissenting Opinion by
I must respectfully dissent.
In Commonwealth ex rel. McNulty v. McNulty,
Search as I may, I cannot find any abuse of discretion on the part of the lower court which fixed the order at $170.00 per month.
I would affirm the court below.
Price and Van der Voort, JJ., join in this dissenting opinion.