*2 WICKERSHAM, TAMILIA, Before BROSKY and JJ. BROSKY, Judge: appeal requiring appellee place
This is from the order a week into a account for the educational needs of bank parties’ minor children. contends that: two (1) the trial court erred in to follow the refusing Pennsylvania for that have been set forth Court; (2) Supreme questioning the trial court erred attempt- was finding appellant candor and appellant’s exercising visitation; of right her ing punish appellee (3) prejudicial ex documents parte the record contains and, first contention agree We with appellant. court and remand vacate the order of trial accordingly, parties’ support obli- recalculation this case gations. in January were married to this action parties marriage, Jacquelyn, born of this Two children were Lynn, 29, 1971, September and Michelle born July
born at September were divorced 1974. The Jersey. resided New Prior to the they which time Burling- decree, Superior Court entry of the divorce Jersey, awarding had issued an order County, ton New part As the divorce appellant. of the children custody *3 put decree, Jersey appellee court ordered the New for the educational needs into a account per week bank the children. and, in Pennsylvania moved to
Subsequently, in 1982, Philadelphia action support filed a appellant June of for reasons not revealed This was dismissed County. action record. by the 2, 1984, support a appellant complaint filed
On March hearing A was then held before County. in Delaware in order entry recommended master who Following of the entry week. amount order, and a appellee timely appeal, filed a recommended 13, court on June held trial hearing de novo was before rehearing in for a appellee petitioned Subsequently, evi- additional to introduce opportunity order to have the in Melzer v. Supreme opinion Court’s light in dence rehearing A A.2d 991 505 Pa. 480 Witsberger, 19, 1984, and, on December was held November pay appellee requiring court entered an order the lower needs for the educational into a bank account per week followed. appeal timely This of the children. below erred argues that the court first Melzer, supra, set forth
refusing to follow for the calculation of parent’s support obligation. We agree. Melzer,
In Supreme our Court set forth uniform guidelines for the calculation of child support. It held that in making calculation, such a the hearing court must deter (1) mine: expense reasonable of raising the children involved; (2) the respective abilities of parents support their children. After it has made these determina tions, the court is to calculate parent’s each total obligation in accordance with the formula set forth in Finally, parent’s Melzer. once each total obligation defined, has been the hearing court must determine what portion obligation of that may by support be offset provided directly to the children. total support obligation may be offset such only by voluntary expenditures as actually satisfy obligation of reasonable and necessary support. Although Id. the figure thus arrived at for the amount of support which must be satisfied by way support pay ments to parent the other is not required by mechanically court, adhered to hearing it must be determined and used the court as a framework for its decision.
In case, the instant the court below made none of the determinations mandated by Melzer. We must summarily reject appellee’s did, argument that the hearing court fact, apply Melzer, but that its statement that “we are convinced Respondent that the [appellee] paying her fair share towards the children” was equivalent *4 to finding a that she had no ability pay any to amount in addition to the amounts she already was are paying. We hardly persuaded that the hearing court’s state conclusory ment that appellee was her paying fair share was equiva lent to a finding that her income available for support, as Melzer, defined in Moreover, was zero. appellee’s argu ment flies in the face of the trial express court’s statement opinion its that:
We are not unmindful of the Superior recent Court [sic] decision of Melzer vs Witsberger, 480 A.2d [505] Pa. [462] (1984). However, we do not feel that the rationale First, there a Petition is here. is approximate [sic] [sic] curently as there exists a New support for an increase being is obeyed. Secondly, Order which Jersey Court Melzer, of not take considera supra, rationale would into con per currently week that mother tion $35.00 tributes, it nor would include the week Order $10.00 being currently paid.[1] the court did not follow dictates below
Since Melzer, we will remand to this case for the court make the Melzer application an necessary determinations and how much the formula,2 to determine whether arrived at that formula should be obligation support contributions, voluntary and use by appellee’s offset its thus at arrived as framework amount It so is ordered.3 decision. proceedings consist- and case remanded
Order vacated Opinion. ent with
TAMILIA, J.,
concurring
opinion.
files
TAMILIA, Judge, concurring:
result,
failed
agreeing
in the
that
court
concur
Witsberger,
established in follow the
apply
even if
we
would
to the instant case
1. While
believe Melzer
order,
Jersey
be a
court were considered to
order of the New
record indicates that there
not sufficient
our review of the
Jersey
requiring
finding
for a
that
the New
order
in the record
put
for the educational
appellee to
week into a bank account
fact,
was,
an
which determined
the children
order
needs of
support obligations
point
parties. We
also reiterate the
would
voluntary
given
parent’s
to be
for a
does allow credit
that Melzer
obligation
satisfy
long
expenditures
as
as those
contributions
made
necessary support. We
that the trial court
note
reasonable and
expenditures
this criteri-
findings
appellee’s
satisfied
as to whether
no
on.
children, i.e.,
determining
his
his
2.
In
living expenses,
the trial court should
less
reasonable
income
his
$43,000
appellant
year
its
finding
earns
that its
that
aware
finding
$1,989 every
inconsistent.
appellant
two weeks are
earns
necessary to
light
disposition, we do not believe it is
In
of our
However,
(2),
appear
(2)
as to issue
would
address issues
credibility
proper
determination.
court made a
that the trial
*5
remand is
Although
505 Pa.
Support obligations gross are income, but must be determined from income available living which is the net income less the reasonable support, parents.1 expenses needs of
Another fact must established is the which for the Failing the children. to establish a dollar amount the needs, formula attempt childrens’ any apply fruitless, re- the final determination of the would be a rational spective support obligations would be without provides: The Melzer formula s* = A; A B amount available to B amount available parent parent m actual , A total kind .1 — = — , ,. , needs . X ~r" —~ c obligation obligation A B oi A contribution or A h , B in kind actual support total support _ nee s X suPPori obligation obligation of B of B contribution A B -í *6 needs, case, expressed by the as the father’s In this basis. I figure the of per amounted week. believe figures, $222 a inflated. The share attributed to somewhat be $222 mortgage old a thirteen old for the year year ten and ($13.45 week), week), per auto- ($92.30per utilities payment week), portion of line with the ($20 per appear out mobile by consumed the children. How- actually be which would of ever, this was a reasonable estimate parties agreed the the children and of substantial needs of the because living, their of to the and standard parties income available figure. accept that would from the moth- A contribution calculation pay, should based on reason- er, if she has the be monthly A amount. extrapolation $143.83 $222 able children, mother/appel- alleged by for the expenditure her fair share of their lee, by the court as regarded was incomes. In maintenance, parties’ in the given disparity month for per an of alleged the mother amount $40 addition to an and a week contribution for the children gifts $10 The a Court Order. Jersey fund on New educational this amount indicated she contributed testimony mother’s partial custody of period six weeks during primarily visitations. during weekly summer on and gifts paid appellee, by month for The $40 $143.83 along with voluntary in contribution is effect which fund, meet the do not the educational per week to predictable have a parent the custodial requirement that The deter- revenue. (supplementary) flow and consistent concerning the offset of necessary $143.83 mination expend- children, is whether these for the monthly expended court lower actually for necessaries. provide itures does acknowl- finding. While Melzer failed to make this obligation may be edge portion parent’s that a children, directly provision satisfied provided here, by appellee would be the total contribution in its court abused discretion The trial direct basis. totally appel- satisfied type of this finding expenditures obligation. lee’s
Although appellee claims that the dispersion of these necessary part sums at least because of children, derelictions his care of the question if, or he is meeting how well their needs is one to be resolved in a proceeding. custody respect
With to the weekly payment of for the educational needs of the children ordered New Court, it is Jersey apparent that the trial judge honor- was ing the intention of the However, New court. Jersey since now reside in Pennsylvania, Jersey New has no further interest or control Further, over these matters. it is preferable that the money readily for the available *7 use, children’s immediate as such accumulations as the are, Order contemplates like appellee’s other “children’s expenses”, not an acceptable support. substitute for
It is axiomatic that a support award must
neither
be
confiscatory nor punitive,
Dana,
536,
Conway v.
456 Pa.
(1974);
The net income of the father is as estab- lished from figure $1,989 per month testified to on the record stated as (incorrectly bi-weekly which would provided $51,714, have a net income of the amount errone- concluded ously judge). the trial his net Adding wife’s $5,200, $29,068. income of I derive a total net income of The second wife’s income is included as she appears be voluntarily to the contributing expenses, household and on balance, appellant paying major share of those ex- penses. Bockin, Pa.Super. See Roberts v. 315 461 A.2d (1983); Shotwell, 630 Astillero 294 Pa.Super. 439 A.2d yearly mother, net income of allowing one-third $27,000, $18,- gross
for deductions from a salary equals in evidence expense provided statements 000. From any expenses attributable parties, excluding disallowing amounts from statements children ($150 to be excessive appearing discretionary that are month),2 for mother $245 for father month— his present those for expenses (including monthly father’s mother’s, $1,072. wife) $1,095, the total $1,095 from his income subtracting father For the $1,327 support. Sub- $2,422 available per month leaves mother, $1,500 net income of the $1,072 from tracting Applying the Melzer support. available leaves $428 equation as follows: arrive at an guidelines, support obligation: child appellee’s For the (needs (M) $428 54.14 $ $428(M) 1327(F) $+ weekly) obligation: For (needs (F) $167.86 $428(M) 1327(F) $+ weekly) mechanical adherence require does not The Melzer case other guide, there are although is basic the formula and case, In while ignored. cannot considerations which in deter- should be considered income appellant's wife’s household, to maintain the amount available mining *8 toto, included where, as here has been Melzer, supra, she is not the fact that given be to some consideration must support. Common- for the children’s responsible legally Reduced = $100 $ $150 to 50 expense Car = $ $100 $to 50 50 Entertainment = $ $150 $100 50 Gifts —Miscellaneous $150 Total Appellee Reduced = $100 $100 $200 Legal fees = $ 70 $120 $to 50 repairs Car = $ $ $to 18 25 43 repairs House = $ $210 50 $260 Food/supplies $245 Total 631 wealth ex rel. Hagerty Eyster, 286 Pa.Super. (1981);
A.2d 665 Astillero, Cf. Roberts and Also, supra. the mother’s expenses are virtually equal to those of the appears father and it she greater can exercise frugality sacrificing without her standard of living permit- thereby ting her to share to greater extent in the support of her reasons, children. For these while the strict formula would require that she contribute per week to her $54 childrens’ support, believe a more just and reasonable contribution per would be week.3 The amount of per week suggested by appellant is on gross income without consideration of the appellant’s wife’s income and the re- spective expenses and is legally unsustaina- I recognize ble. that six partial weeks custody during the summer will shift the burden considerably support the children during period, while certain underlying ex- penses continue unabated I would, with the father. there- fore, set the order per at period. week the six week
I think application the Melzer facts of the present case should assist the lower court in its understanding of the process to employed dealing when petition with a for support. Flexibility exists in the final formulation of the support Order where factors relevant to the case at hand are evaluated to determine if adjustments should be made to the support obligation as calculated under the Melzer formula.
I think it is also important to note the enactment of H.B. 98 as amended on October 6, 1986, effective January which amended Pa.C.S.A., Title 23 specifically adding 4322 which provides: § 4322. Support guidelines.
§ The courts of pleas common shall develop guidelines for child spousal persons so that similarly situated shall be treated similarly. guidelines shall actually only 3. This order is appellee week §4.31 more than alleges presently paying she is for the children if we consider the §143 (in-kind monthly support), monthly (gifts) (edu- weekly §40 §10 fund). week, averages cational This §52.23 whereas our order *9 average weekly comes to §56.54 on an basis. spouse needs of the child or the reasonable upon obligor to provide seeking support and place primary emphasis shall on guidelines support, capacities parties, earning incomes and needs, for unusual extraordi- deviations with allowable factors, parties’ as the and other such expenses nary assets, special attention. as warrant court instruct the lower should remand would On along set forth in statute the considerations incorporate the. with Melzer its Order. guidelines formulating passage should also be alerted to and bar
The bench of its into necessity incorporation legislation and of this new impact legislation proceedings. have had apparent after courts only will become for in the called develop opportunity an situations. apply specific them statute
510 A.2d Pennsylvania COMMONWEALTH DREW, Appellant. Kevin Superior Pennsylvania. Court 5,May 1986.
Submitted Filed June