*1 Vignola Appeal.
Submitted December Before 30, 1975. Watkins, J., P. Jacobs, Cercone, Voort, Hoffman, Price, der Van Spaeth, JJ.
Joel E. Rome appellant. and Lawrence DiSipio, appearance No ap- entered nor brief submitted for pellee.
Opinion Per Curiam, February 18, 1976: January, Appeal quashed. Tracey Appeals, See Service Co. Special Investigating 7 Jury, Grand 19 (1976) Shapiro ; Ap A.2d peal, January, Special Investigating 197 Jury, Grand A.2d Appellant,
Weiser, v. Weiser. *2 J., P. Argued 11, 1975. Before Jacobs, Watkins, June Voort, Spaeth, Cercone, Price, der Hoffman, Van JJ. Comisky, Perlberger,
Marvin with him Norman Blank, Rome, Comisky, appellant. Klaus & for Matzko, Krusen, Byrne,
Paul with him Evans & appellee.
Opinion Watkins, P.J., 29, 1976: March *3 appeal This is an from the order of the Court Com- mon Philadelphia County, Family Pleas of Division, in which the defendant-appellee, court below directed the Weiser, pay Gerald wife, Weiser, J. to to the Norma Rae appellant, the support the sum of week for the $150 of the wife and three children. position
The appeal of the wife in this is that the inadequate court’s order is the because court failed to take into earning potential consideration the husband’s and the standard of to which he had acclimated family. the
The patent lawyer husband ais who had been em- ployed in the firm Dechert, law Price and Rhoads at yearly salary a $40,000.00. of about March, In the 1973, employment husband terminated Dechert, his Price and practice Rhoads and went into own, eventually on his forming his own partnership attorneys. with two other the earnings employment the time of the new
His from hearing per week. were $340.00 April 15, The hus- 1951. parties
The were married July 4, family 1973. The home on band moved of the out 20, years marriage 18 and 16 the were children of three age the the Two of children and remained with wife. youngest college a presently while the is are enrolled boarding private wife has a school. student The hearing separate year. $10,000.00 At presented evidence that before the court below the wife expenses amounted tuition and the children’s education year expenses $16,715.00 per household $20,000.00 per year. amounted to We are not con- over exaggerated, especially the vinced that this is not house- expenses. hold support limited to a
This Court’s review of orders is determination of whether there is evidence so, only the order if the order be if will reversed there has been an of discretion. Commonwealth ex abuse Goichman, rel. Goichman v. (1973).
The very carefully court below in a detailed and opinion say: reasoned had this to petitioner arguing “Counsel for that defendant’s salary former precedents should control submitted intentionally which a defendant either left a lucrative position drastically thereby and earnings, reduced his intentionally kept earnings minimum, to a or proportion asserted reduced income out to the appeared amount he spending. to be McNulty ex McNulty, Superior rel. v. 226 Pa. Ct. 247 (1973) (lower court found that defendant’s was his reduction in income incredible support); intended defeat his wife’s claim to Com Snively Snively, monwealth ex Superior rel. v. (1965) (defendant voluntarily quit Ct. 278 job college, virtually eliminating and went to his income taking on a financial in the burden form of school expenses); Raitt, Commonwealth ex Raitt rel. v. Superior (a pharmacist Pa. (1964) post Ct. 226 with graduate degrees potential earning greater an had far than the amount pharmacy); he made in a local Com Trimble, monwealth (defendant
(1962) made an insufficient effort to ob employment deliberately tain withdrew from in producing work); come Commonwealth ex rel. Kane Kane, (1960) (defendant’s Pa. Ct. 98 very standard belied his claim to in low come) ; Commonwealth ex Wieczorkowski v. rel.
493 Wieczorkowski, Superior (1944) (son 155 Pa. 517 parent contributed his services to board and keep). In such indicated situations courts have potential earning the husband’s should be basis for the order.
“However, in the instant there was no indi- case, cation that out on so Weiser struck his own as to Mr. family’s right support. began defeat his In fact he months before he was new association several separated from Mrs. There was no evidence Weiser. concealing that he that his standard was income or earnings. his claimed of was inconsistent with drawing not in- Moreover, the amount was was considerable. point on
“A case which is more Commonwealth Montg. Shaffran, ex rel. Co. L.R. Shaffran Superior (1970). (1969), This aff’d. 217 Pa. Ct. 856 job case a left a in an advertis- involved husband who ing monthly agency, $1350, to where his income was agency. monthly form his His income for the first own year it increased half his former income but about years successive so that the time of court’s earning decision, court found he was about The $986. change deliberately that the was not made to reduce avoiding purpose his income but for the limited agency hope of future in the former and with the sup- earnings. increased The entered a future court port averaging current income order about of his 62% for the maintenance of his wife and two children. past The wife wanted the order to be based on his "(a) support The order income. Court stated past earnings, should be based on the not husband’s light present if it would be unrealistic to do so also, circumstances.’ Id. at 341. See Commonwealth Haimowitz, ex rel. Haimowitz v.
Ct. 364 “ may ordinarily only ‘The Court make orders income, based property, husband’s earning ability hearing, at the time not on what they may past.’ been Testa, (Advance Re ports, 1974). upon based Accordingly, Weiser’s Mr. earning ability hearing at the time the award present in the approximately case was half one spendable ‘Although Mr. Weiser’s income after taxes. there says is no rule which that an for a wife award may and children not exceed one half of the husband’s *6 income, not, nevertheless, impose must an unrea Lipsky sonable on burden him.’ Commonwealth ex rel. Lipsky, 215, expenses. “Mr. Weiser had considerable His rent weekly; payments per his car were $58.50 $88.00 alleged spent per week. He that he on week $60.00 food, per clothing, about on week for Blue $5 $7.50 family, totalling Cross and Blue Shield for entire the $164.00, plus additional amounts for other need. In alleged he all weekly expenses the of his total outstanding be bills1 to matter how in- No $587.70. figure might been, flated that it was that clear taking he was in need of at least into account $165 specifically the amounts listed ex- above, additional penses figure and his debts. This when to the added $315.00, order of totals which could $150.00 well be net the remainder after taxes are deducted earnings from his per week in and un- $400 questionably when deducted from draw of $340 hearing.” at the time of the approximately 1. in “Included this amount was $261.00 $9,000 by week reduce in to hills over incurred him and his wife. residence, arrange- As Mr. and Mrs. own a substantial Weiser pay obligations may ments Mr. made to Weiser has these serve to judgment upon property. avoid a that In addition to the debts previously mentioned, $21,000 against Mr. has borrowed Weiser policy.” his life insurance Hauptfuhrer rel.
As we said in ex 2d 301, 306, Hauptfuhrer, appellee (wife) (1973) seems certain that : “It quite capable spending any her sum children are appellant provide is for them.” (husband) ordered by court, his case, pointed out this as
However, change separation employment so came before purpose of it is for the contended that it was not reducing family separation. he As sup- awas not so to believe that lawyer, we are naive as port payments may anticipated by not him. have been disturbing Another factor is that he continued his own if receiving standard he as were the income clearly which he had been accustomed and which was extravagant relation his current income. This expensive illustrated fact he took three vaca- separation style. tions since the and continued his life Appellee’s change employment in resulted in an come reduction of more than one It is fact half. also a partner that as a in the law firm could control weekly may accurately draw and his income of not $340 earnings. reflect his new It is for these we reasons that inadequate. certainly feel the award is Most he has the right to expense own establish his business but not at the *7 family, style of life on whose he created based year changed $40,000.00 per income which now must be enjoy to meet the new conditions while he continues to high his usual standard. case, the in we
Under circumstances set forth this feel hold be constrained the amount award to an abuse discretion and direct that the award modi- be upward provide payment support fied for the the weekly. wife three children to the sum of $200 Jacobs, J., dissents.
Concurring Dissenting Opinion Spaeth, J.: Appellant, Weiser, Norma Rae has asked that we reverse the order of the Court of Pleas Common Philadelphia County awarding per her week $150.00 argues, first, herself and her three children. She that the lower court abused its discretion when it failed to appellee’s earning capacity consider its instead based upon and, award earnings, second, his actual the gave appellee’s lower court erred when credence to testimony majority about his current income. The holds that the amount of the award constitutes an abuse dis- cretion, and directs that the award be increased to $200.00 join disposition. Although week. I cannot this I find the inadequate record before us to sustain the order of the court, inadequate lower I find it an even more basis for independent computation this court’s of a new award. my view, disposition In the better would be to the reverse order of the lower court and remand for eviden- a new tiary hearing. hearing, At such a the lower court could order in further in which areas the instant unsatisfactory: actually record is most the income avail- appellee in able to new for his position, reasons voluntary change employment prior five months to his separation from his and the wife, financial needs and appellant. resources of
In Shuster, Commonwealth ex rel. Grillo v. 229, 236-237, (1973), 312 A.2d this explained importance court adequate of an record custody proceedings: may that there “So be assurance finding process .. adjudica .that fact and ultimate did the issue to tion focus . which 'all other consid . . subordinate,’... hearing judge erations are should every custody opinion file comprehensive case a reflect ing thorough analysis of the record as a whole and specifying reasons for ultimate decision.”
497 all the includes my adequate record that view, In an as at least evidence is important and the relevant issues cases, the Typically, in such important support cases. of the dependents the resources the and actual needs accusations wage the bitter obscured earner are parties. It indeed difficult competing of the is claims the witnesses hearing judge, observes who exaggeration reject credibility, assesses their that reflects formulate an award and to concealment complex- parties. requirements of the Because real cases, “comprehensive ity a of the issues record as reflecting thorough analysis of the opinion a whole” is essential. scope appellate review recognize the limited propo repeated the
support proceedings. have often We judge support proceeding, the trial sition that “[i]n position in a better who and hears the witnesses sees on merits.” the issue its Superior Court to decide than the Friedman, 223 Friedman v. ex rel. Commonwealth refused, 158, Superior 66, 67, A.2d 159 Ct. 297 [allocatur (1972). appellate court An Superior 223 Ct. Pa. xxxv] printed record on the basis of at its decision arrives discretion, abuse absent a clear Consequently, before it. court. Common of the lower will defer to the order we Hauptfuhrer, Hauptfuhrer v. wealth ex rel. (1973); 672, Comm 301, 303, 673
Superior
310 A.2d
Ct.
Long
Long,
rel.
onwealth
ex
suggest
(1956). I
even
41,
888,
43, 121
A.2d
preferable
erred,
to remand
it is
the lower court has
when
may
court,
amend the
so that
the case to that
independent
our own
order,
to make
rather than for us
v. Goich
ex rel. Goichman
revisions. See
A.2d 653
man, 226 Pa.
review
however,
of our
submit,
that in the exercise
given the
accept
than
as
powers,
must do more
we
Although
court.
analysis
lower
and conclusions
hearing
nullify
fact-finding
function of
we cannot
Harry
Eastridge, judge, Commonwealth ex rel.
do, however,
(1953),
Pa.
II In order to decide whether its decree to base upon appellee’s potential earnings, current income or his necessary appellee’s the lower found it to consider court leaving well-paying job prestigious reasons for with a appellee law firm as well as the evidence submitted to reported earnings. The court substantiate his lower con- cluded that “:.. there was no indication that Mr. Weiser family’s right own struck out on his so as to defeat evi- . . .” and that the record showed “. . . no concealing standard dence that he income or was earnings.” claimed with his inconsistent was difficult conclusions Opinion find these at 245a. testi- contradictory and evasive appellee’s with reconcile present past income. mony about his questioned appellee appellant Although counsel for re- were vigor persistence, appellee’s answers with example, For when asked unresponsive. served enjoy as an you did em- cross-examination, “What appellee Rhoads?”, an- Dechert, first ployee of Price and Appellee not swered, $35,000.00”. did “I believe about $5,000.00 in additional received an reveal that had salary during year question until cross-examined further:
“Q. your $40,000.00 annual rate for 1972 was So $35,000.00; and not correct? is that (Before 9a-10a). (Record, taxes, it is correct.” appellant’s Appellee responsive even less when coun- *10 inquire attempted sel income from sources about his practice the other than of law: “Q. your you Did from receive an inheritance estate? father’s directly. No, have,
A. I don’t Q. any Directly you get money indirectly, or did your ? from father’s estate No, A. I did not.
Q. beneficiary your You not the father’s are you beneficiary the under his will? estate? Were not beneficiary My of the is the will. A. mother Q. The no ? answer is Yes, A. answer is no.
Q. you your $12,000.00 Did from receive mother? No, A. I did not.
Q. you your $12,000.00 Did from receive father’s estate ?
A. No.
Q. you here, Do We have the will Mr. Weiser. your want to reconsider answer? you
A. any money tell I did not receive from my father’s estate.
Q. you any Did assets, any receive stocks or ? bonds Yes, (Record 16a). did.” at questioned
When deriving about the income he was from his partnership, appellee new contradictory offered incomplete reported personal answers. He his from partnership $17,381.00 as on his 1973 Partner- ship (Exhibit 202a) Return P-2, Record at and stated produced that his efforts had $17,000.00 $62,963 earned the partnership during year (Record 13a). asserted, He however, generated also that he had over partnership’s of the (representing ap- business 50% proximately $32,000.00 fees). Although attempted he to resolve inconsistency by this claiming obvious $17,000.00 represented net income and that he had in fact produced gross more than of the income, firm’s 53% 14a, Record unconvincing. remains More- over, reliability appellee of the tax returns which reported personal questionable; income is for ex- ample, although previous support no order had been entered, appellee time, was still married at the single listed himself as on his 1973 State and Federal returns, income tax $4,378.00 and claimed a deduction on alimony paid. Federal (Record lla-12a). return for accepting appellee’s testimony Even that at the time hearing drawing he was week from $340.00 the partnership, apparent not at all to me how he was able to live in the manner he did income he reported. Appellee apartment rented an at the Plaza on *11 Parkway, paid an additional sum for rented furniture parking (Record, 121a-123a), costly took three vaca- during (Record tions 23a-26a) and financed the purchase of a new automobile in June, addition, 1974. In appellee arranged claimed that he had with creditors to weekly payments make $9,000.00 on over in bills which jointly he first, and his wife had At he contended incurred. obligated pay he that to the creditors $587.00 However, week. under he reduced this cross-examination, figure earnings: to one more consistent with his admitted
“Q. We are then down to about a week $475.00 you according your testimony arrange- that have to pay weekly creditors; ments to that sum to is that correct?
A. That is correct.
Q. Now, you only gross you testified that draw a amount of a week ? $450.00 right.
A. That is Q. pay creditors, You made ex- commitments to your expenses clusive of own which are reflected on page 1, college expenses, page exclusive of 3 of Sched- 4; you this, ule how can do Mr. Weiser? just by paying
IA. I don’t exist what can. money. though pay- The Court: It looks to me as week, approximately if he is ments are $475.00 paying at all. week
The Defendant: That amounts to $200.00 164a-166a). $9,000.00.” (Record if I divide major expenditures, appellee In testi- addition these through per week paid he had wife fied that his $200.00 paid $16,000.00 June, 1974, and he had also in tuition psychiatric and in bills that date for his three children ,1 30a-31a) (Record explained he had borrowed He against in order meet $21,000.00 life insurance his permitted expenses. if substantial loan Even this those use,2 income for his own him of his to reserve most college private Appellee pay or school did not children’s 1. 49a-50a). year (Record at tuition for the 1974 school loan, pointed Appellant’s that because of out counsel 2. $17,000.00 $13,000.00 of the spend at appellee least was able alleged expenses and on the debts: reported on his own *12 expenditures appear compared when in- excessive come to which he testified. may given why more
One illustration be I it find appellee’s testimony difficult to credit about his income. Appellee questioned relationship was about his with a young receipt Switzerland, woman in and his of several (Record Although 40a-49a). stated, letters from her at “I about, don’t know what these letters are all what language (Record 43a), reading that is” he admitted to at language German, the written, which the were letters speaking fluently (Record 45a). and it at said that He (Record 43a, 47a) he had never seen the before at letters any and that he letters, did not know “Rose Marie.” The however, opening appellee’s discussed such facts as the (Exhibit A, 214a), they new law offices P-3 Record at by appellant appellee’s had been found briefcase. contradictory such Given testimony, evasive I find inadequate the record to sustain the lower court’s decision to base the order of on the income to appellee which the reported testified and which he in his income tax returns.
Ill My opinion appellant’s testimony is not much more favorable appellee’s. say than is of To least, her responses questions about her extremely resources were guarded. Although receiving she admitted to income from (Record 86a) several trusts at receipt and to $10,000.00 in interest from her share of a condemnation award (Record 87a-90a), at consistently any she disclaimed
“Q. $21,000.00 You your borrowed from life insurance company provided support your wife and chil- dren approximately $25,000.00 at the rate of for the period. stating same So am I correct then in that the you personally your amount took from own income only approximately $4,000.00? accept that, yes. (Record 32a). I . . knowledge understanding of her finances. Statements or frequent: following such as the were my memory. care “It I don’t take wouldn’t refresh (Record my matters, my does.” financial brother 90a) you guess tell what I I I “Yes. wrote it. cannot you please question me, don’t If understand wrote. 114a) (Record understand all of that.” *13 charge My “I it husband took never understood all. my took care of of the finances and brother trying all Please estate. I am to understand of this. (Record 114a) expect don’t me to understand it.” at questioned When, cross-examination, appellant rec- about had made on her financial notations that she ords, responses faltering her were and evasive:
“Q. ‘Trust’, Referring top page, of the to you you have encircled one have four trusts and trust — alongside that of one as 901-903 Market Street, your handwriting, ‘Net appears is a notation in that mean $13,000.00, about child.’ Does this child? you writ- tell that this must been must obviously my couple years ago. It hand-
ten a is get writing. really time to it in It takes I can’t tell. —” my saying head. am not budget hand, to discuss her the other when asked On 226a-232a), to tes- (Record 66a-68a, at or at Exhibit P-5 tify made her father contributions to relative 183a-185a), (Record purchase home at husband to the memory financial de- appellant excellent showed an ap- understanding of I note that tail and an acute costs. three budget expenses and her pellant’s for herself lists figure appel- $44,628.00, a excess total children that attorney an at annual income as lee’s entire former 226a). (Record Dechert, and Rhoads Price working college graduate, Appellant who was ais counselling guidance at the Degree toward a Master’s “ hearing. time of the ducation is ex- She stated [E] tremely important me,” 60a, and claimed that Record through way she had her husband’s law school. financed I find with it that a woman the educa- difficult believe appellant tion and values could be so uninformed about personal her makes financial situation as her appear. her
Appellant’s her resources evasiveness about financial adequacy makes evaluation order extremely very provides difficult. record Moreover, employment potential. little Al- information about her though appellant briefly during appears worked she employed during marriage to have her not been most of (Record 82a). will the labor she enter market Thus, despite degree. with certain recent disadvantages, her Nevertheless, now that her three are children over possible appellant may eighteen, be able to substantially contribute past more than she has her own and to the children’s educational ex- penses.
IV
*14
As the
recognized, Opinion
242a,
lower court
it is
formulating
a
equitable
well-established rule that
in
an
support order,
earning
may
capacity
the court
look to
as
earnings.
well as to current
Commonwealth ex rel. Raitt
Raitt,
Superior
v.
226,
(1964) ;
203 Pa.
Ct.
505 ex rel. (1944). Although we in Commonwealth said Hauptfuhrer supra, Hauptfuhrer, v. living 304, 673, “It the standard of 310 A.2d at is governs family the
which a becomes accustomed that consistent, proper support order, calculation a course, always the with husband-father’s assets,” suggest I do a rule not this court fashion wage support require that in a which would earner professional aspirations proceeding subordinate his valid position family, remain in a to the needs his policy would be which frustrates his ambitions. Such a unwise, particularly in instant the context of case. rehearing If, however, fails to taken appellee’s explain the marked between inconsistencies earnings expenditures, if reported and his actual testimony justifies support appellant’s more substantial judge order, appropriate for would find the trial appellee’s earnings formulating potential an consider support. order of question particular lower reliance on court’s income, given his such
appellee’s tax returns as indicia of alimony deduction. As inconsistencies as an unwarranted hearing judge in a appropriate said, we have it is beyond wage tax earner’s returns case to look his actual flow: cash on in- “The income of defendant shown as net accepted in a tax is be come returns not to capacity. earning infallible case as the test Particularly where the defendant is this true busi- for himself and is allowed substantial business live luxuri- ‘expenses’, . enable him to ness . . which Common- ously spending taxable income.” before Miller, Ct. 573, wealth Pa. A.2d Goichman, supra, ex rel. Goichman There, us. the one
presented a similar to before situation *15 attorney pay week had been ordered $325.00 an 506 support earning capacity
for the of his children. had His by per year $60,000.00 been found court to be lower However, in 1969 and 1970. that his income claimed supported by submitting had been this claim reduced, years question tax returns for the in which showed an earning capacity approximately $13,000.00 and $20,000.00 (226 Superior 316, 656). Pa. Ct. at 316 A.2d rely lower The court refused to on these returns and in- stead, expenditures by which, looked his his ad- own mission, $29,000.00 over that he included had lavished upon upholding In quoted himself. this order, we opinion: from “Respondent petitioned the lower court’s to reduce the amount of children, awarded for his continuing while style. to live in lavish Court felt This that if there Respondent’s was an actual in decline in- come and corresponding change assets, ap- would be parent Respondent’s style.” life Commonwealth ex rel. Goichman Goichman, supra, Superior atCt. 316, 316 A.2d 655.
It is true that we said Commonwealth ex rel. Haimo witz v. Haimowitz, 364, 221 367, Pa. 292 A.2d (1972), 504 that:
“It living, is that standard of by so reduced salary, lesser to which the lower court should have itself, addressed and not the standard of that would have been prior job afforded defendant’s ...” case, That however, distinguishable from the one be- There, fore us. acquiesced the wife had in the husband’s change position gave up before he better-paying job. Moreover, in appellee contrast here, the husband significant made economize, efforts to moving such as parents. with The record before us does not show extenuating circumstances or of case, Commonwealth ex rel. Shaffran, Montg. Shaffran (1969), Co. L.R. 339 aff’d., (1970),
A.2d present are here.
V record, position in the Were we to have confidence I would have affirmed the order of the lower court. That recognized earnings order current of the “[T]he parties limited, are nec and do not furnish the amounts essary parties enjoy for the continue the standard they Opinion to which have become accustomed.” us, 249a. With such as we have before how ever, confidence, I tell have no such and cannot whether analysis thorough the order has in fact been “a based on of the whole,” record aas Commonwealth ex rel. Grillo Shuster, supra or whether the 312 A.2d legal was, fact, applied. correct standard For rea this hearing son would reverse and remand for a new con opinion. sistent with this
Dissenting Opinion by Price, J.: Although I present believe that circumstances indicate that lower court abused its discretion refusing to potential earning consider capacity of the appellee in order, disagree formulation of its majority’s with disposition of this As the case. majority correctly observes, appellate courts do not wish “super-support substitute themselves as courts” be- they cause opportunity not had the to see and “[h]ave hear the witnesses credibility.” Yet, so determine majority only not concludes that the lower court abused its but also directs that the discretion, award be adjusted to a sum In certain. view of the above-stated principle, I properly believe that we should more remand to the lower court with directions to increase the amount of the award in a manner which reflects factors dis- majority’s opinion. cussed in the I would therefore reverse the order of the court below and remand with directions to increase the award in an amount principles consistent with the majority opinion.