Leasure v. Leasure

BROSKY, Judge:

This is an appeal from an order entered by the trial court denying appellant’s petition for modification or suspension of child support payments during the period of appellant’s incarceration.

The issue currently before this court is: whether the trial court erred in refusing to suspend and/or modify the order of support. We respectfully reverse the decision of the trial court and remand this case with instructions.

An appellate court will not overturn a support order entered by the trial court absent an abuse of discretion. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976). However, we must bear in mind that we have before us a case of first impression at the appellate level. Thus, the learned trial judge, while wrestling with this decision, had no appellate authority upon which to rely for guidance.

Appellant, through his attorney, appeared before the trial court on October 27, 1987, for a hearing on his petition to suspend the previously entered child support order. That order had directed appellant to pay $16.70 per week in child support for his minor child.

Appellant based his request for suspension of child support payments on his incarceration. He had been sentenced on August 4, 1987 to one to two years imprisonment for crimes unconnected to his support obligation.

Child support orders may be modified only when evidence produced at a hearing establishes a substantial change in circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). Further, the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification. Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa.Super. 283, 406 A.2d 805 (1979). Thus, the burden is on appellant to prove a material change of circumstances.

The trial court, in denying appellant’s request for suspension/modification, reasoned that, not only is incarceration an act not sufficiently “permanent” to allow for modification, see Jaskiewicz, supra., but also, that because it was appellant’s voluntary act which put him behind bars, it is a situation analogous to a parent voluntarily reducing his salary to avoid paying support. See, Wing v. Wing, 338 Pa.Super. 516, 488 A.2d 11 (1985). We disagree.

While it is true that case law has stated that the record must show a “permanent change in ... circumstances”, see, Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979), Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974), the cases did not specifically define “permanent”. Rather, the Court failed to find any material change in circumstances, thus, leaving the issue of permanence unaddressed.

Instantly, appellant was sentenced to serve 1 to 2 years in prison. While appellant may only serve 9 months with pre-release, he may also serve the entire 2 year period. The period appellant will serve remained indefinite at the time of the hearing. We choose to compare this concept of permanence to the situation in which a parent loses his job. There, the parent’s “change in circumstances” is indefinite in that he may secure employment within a very short time, or he may continue to be out of work for several years. Thus, we will focus upon, not only the period of time involved, but also, the definiteness of time and irreversibility of the circumstances, in our assessment of permanence. Accordingly, we do not feel that appellant’s motion should be denied because he will not be incarcerated for the remainder of his life.

As for the trial court’s analogizing incarceration to a' voluntary decrease in income, we cannot agree. Incarceration is usually an involuntary situation. While it may be possible to envision a parent avoiding child support by going to prison, we find it highly unlikely in the instant case, where appellant was paying $16.70 per week and where there were no allegations that appellant ever defaulted on his payments previously.

We must note here that, the rationale used by the trial court is identical to the reasoning used by the Supreme Court of Nebraska in Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985). There, the court refused to modify a support order when the father was incarcerated for “voluntary” criminal behavior. We agree with the trial court instantly that appellant was not forced to engage in criminal activity. We, however, are more persuaded by the dissent of Chief Justice Krivoska in Ohler, who recognized that barring an incarcerated and indigent parent from seeking a modification provides no present benefit to the child. Imposing upon the incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child. Rather, it simply adds to an accumulating burden which falls upon the parent when he is least able to bear it.

This same idea has been espoused by other jurisdictions who have refused to force an incarcerated parent to pay support unless that parent possesses another asset from which funds could be generated. Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983) (Father had equity in a house to be used to provide support for his children); Foster v. Foster, 471 N.Y.S.2d 867, 99 A.D.2d 284 (1984) (Support payments suspended even where father had equity in a home, since court would not force wife to sell the home to meet father’s obligation); Matter of Edmonds, 53 Or.App. 539, 633 P.2d 4 (1981). (Parent is not liable for payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments).

With regard to appellant’s assets, the following exchange took place:

MR. MORTON: Do we know what other asset he might have, Judge, that would allow him to pay support.

THE COURT: Was he a PD client?

MR. MOORE: No, he was a private client. He wasn’t working at the time. His parents are friends of mine, and he didn’t have any real estate. I think he had a car but I think he sold it. As far as I know he has very few assets. He was working in a business for his parents and they were paying him. He will have employment again when he gets out of jail, there’s no question about that. But I don’t think there’s anything that would be of any use—

THE COURT: Does he get any money in jail?

MR. MOORE: Not as far as I know.

MRS. LEASURE: He gets paid and he told me he gets paid. I don’t know how much he does.

THE COURT: Twenty cents an hour.

THE SHERIFF: Highest is about sixty-five cents.

MRS. LEASURE: Which is nothing, but neither is what he pays.

(N.T. pp. 5 and 6). Admittedly, this does not appear to be an indepth probe of appellant’s assets, which this court would prefer. However, it does evidence the fact that appellant’s assets were considered by the trial court and that both sides had an opportunity to address the issue. Further, we must recall that the trial court did not base its decision denying relief upon appellant’s affirmative ability to pay, but rather upon the idea that appellant’s “voluntary” and “temporary” situation should afford him no relief. Thus, we are satisfied that appellant is unable to pay support during his incarceration.

We cannot, however, ignore the minor child’s needs or appellant’s overall duty to support his son. Therefore, while we cannot, in good conscience, force appellant to do the impossible by paying support from his prison cell, we will order the trial court, upon appellant’s release from prison and upon his securing a job, (which his attorney assured us would occur immediately upon his release), to review the support order which we are temporarily suspending. The trial court is to reassess appellant’s earning capacity, bearing in mind the fact that appellant’s son was forced to go without his father’s financial support for an extended period of time. Should the trial court then find the current order to be insufficient, we direct the trial court to enter an appropriate support order at that time.

Order of the trial court reversed. Order of support suspended with instructions to the trial court to review the order in accordance with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.