DocketNumber： 2153
Judges： Cirillo, Beck, Tamilia
Filed Date： 12/26/1989
Status： Precedential
Modified Date： 10/19/2024
This is an appeal from a final order directing husband appellant to pay spousal and child support. Husband raised the following issues in his exceptions to the master’s report and now raises the same issues on appeal:
1. Whether it was error to conclude that plaintiff [wife] was entitled to support for herself because her conduct was such as to deprive her to entitlement?
2. Whether it was error to fail to attribute unused earning capacity to plaintiff, where she is a registered nurse and refuses to even consider jobs where she could earn more money?
3. Whether it was error to find that the net income of defendant [husband] was Five Thousand Seven Hundred Seventy-Three ($5,773.00) Dollars per month, where the amount is contrary to fact?
4. Whether it was error to attribute the retained cash in defendant’s partnership to him as income?
5. Whether it was error to award support in an amount in excess of the reasonable needs of the recipients thereof?
6. Whether it was error to award support in an amount which exceeds defendant’s take-home earnings?
7. Whether it was error to award support in the amount of Two Thousand Nine Hundred Sixty ($2,960.00)*229 Dollars per month, because that amount is confiscatory?
8. Whether it was error to award spousal support in an amount exceeding one-third of defendant’s income?1
The trial court found no merit in any of these contentions and dismissed husband’s exceptions.
Our standard of review is narrow. We may reverse only if we find that the trial court committed an abuse of discretion in awarding spousal support. Morley v. Morley, 283 Pa.Super. 397, 424 A.2d 524 (1981). We find no such abuse of discretion here. The trial court, per Judge Michael Joseph Melody, authored a comprehensive and well-supported opinion that more than adequately addresses and resolves the issues presented. Thus, relying heavily on the reasoning of the trial court, we affirm.
As to issue number one, the trial court appropriately determined that wife’s conduct does not bar husband’s obligation to pay spousal support. The court correctly stated the applicable legal standards as follows:
“It is well settled that the obligation of support continues until it is shown that the conduct of the dependent spouse provides a ground for divorce. Morley v. Morley, 283 Pa.Super. 297 [397], 424 A.2d 524 (1981); Hellman v. Hellman, 246 Pa.Super. 536, 371 A.2d 964 (1977). Moreover, the conduct claimed to nullify the obligation must be proven with clear and convincing evidence. Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. McCuff v. McCuff 196 Pa.Super. 320, 322, 175 A.2d 124, 125 (1961) (‘Proof of guilt must be clear and satisfac*230 tory’)” Roach v. Roach, 337 Pa.Super. 437 [440], 442-44, 487 A.2d 27, 28 (1985).
Husband/Father does not specify ... what fault ground for divorce he believes Wife/Mother’s conduct should be subsumed under. It appears from the nature of the testimony that only 23 P.S. 201(a)(6) would arguably have any application to these facts. This provision provides for divorce when the offending spouse shall have “(6) Offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome.” But where indignities are the asserted ground for divorce the spouse who asserts that he or she is innocent and injured must not have provoked the alleged indignities unless the other spouse’s retaliation is excessive. Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983)....
Trial Court Opinion at 24-5.
Analyzing the evidence before it, the trial court then found that the parties had engaged in mutually provocative behavior and that husband had not shown grounds for a fault divcjrce that would relieve his obligation of support. We agree! The trial court committed no error in analyzing the pertinent law and applying it to the facts, nor has husband in any way supplemented his argument on this issue on appeal.
As to the second issue, concerning the court’s failure to attribute unused earning capacity to wife, we also agree w}th the trial court’s conclusions. As the court stated, although a spouse should seek employment commensurate with his/her earning potential, a spouse equally may limit his/her working hours in order to care for his/her children. Trial Court Opinion at 26, citing Newcomer v. Newcomer, 325 Pa.Super. 536, 473 A.2d 197 (1984); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985), aff'd and remanded on other grounds, 515 Pa. 393, 528 A.2d 1318 (1987). Here, wife testified that she worked a limited schedule and for a lower rate of pay than she otherwise would because doing so enabled her to have the time and
Next, husband challenges the court’s finding that husband’s net income was $5,773.00 per month. As to this contention, the trial court reviewed the testimony presented to the master and concluded that there was adequate support in the record for the master’s factual conclusions. We agree and find no ground for reversal of this factual determination.
Fourth, husband alleges that it was error for the court to have allowed retained earnings of the partnership of which husband is a partner to be attributed to husband as income. The trial court concluded that the testimony as to why the partnership was retaining this income was too vague to support husband’s claim that retaining this money was necessary to the partnership. We agree. To allow husband to shield substantial income of his business from consideration in determining his support obligation without more evidence as to a legitimate need to do so would allow spouses with support obligations to evade their obligations by unilaterally reducing their income. This is obviously impermissible under Pennsylvania law. See Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324, 326 (1985).
In husband’s next argument, he alleges that wife and her children were awarded support in excess of their reasonable needs. Husband bases this argument exclusively on the fact that wife requested less support than she was awarded. We find the award of support to be well within the trial court’s discretion. The trial court more than adequately explained its determination of the appropriate level of support as follows:
The amount of support awarded does not exceed the reasonable needs of the wife and the children. In reaching this conclusion we have followed and been guided by our Appellate Courts through their opinions in Melzer v.*232 Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).
The formula of Melzer is not intended for strict mechanical application. “In interpreting Melzer, the Superi- or Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majorities’ [sic] admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. DeLuca, 353 Pa.Super. 622, 625, 510 A.2d 1239, 1241 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986).” DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508, 511 (1987).
In the case sub judice, our Hearing Officer used the Chester County Guidelines. We have reviewed his use of said guidelines. In light of Ryan and Shutter, we have determined that the Hearing Officer’s figures are proper and we conclude that the Hearing Officer has properly and flexibly applied the county guidelines consistent with Melzer and Ryan.
Trial Court Opinion at 30-1.
Our review of the record leads us to the same conclusion. It is not the function of this court to substitute its judgment for that of the trial court. We review for abuse of discretion. Morley, supra. Here, the trial court did no more than exercise the flexible approach to the Melzer formula that the decisions of this court have instructed it to employ. In doing so, the court arrived at a just result that provides for the reasonable needs of the wife and children, although higher than what wife estimated these to be, while leaving
Husband’s last three allegations are equally without merit. We need say no more than did the trial court:
[Issue 6:]
Neither Melzer v. Witsberger, supra nor the Chester County Guidelines are concerned with “takehome earnings____” Where, as here, the court is concerned with income from a partnership in which Husband/Father is a one-third partner, the determination of the amount of Husband/Father’s “take-home earnings” is too much within Husband-Father’s control to be relied upon by the court.
[Issue 7:]
“An order of support must be fair and not confiscatory and must allow for the reasonable living expenses of the payor. Costello v. LeNoir, supra, 462 Pa. [36] at 40, 337 A.2d [866] at 868 [(1975)]; Dunbar v. Dunbar, supra, 291 Pa.Super. [224] at 230, 435 A.2d [879] at 882 [1981]; Ford v. Fitzgerald, 282 Pa.Super. 25, 26, 422 A.2d 657, 658 (1980).” Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297, 1300 (1983).
The amount awarded in this case for Wife and children is $2960.00 per month. The net income of Husband/Father is $5773.00 per month. Thus, there is $2,813.00 per month remaining for Husband/Father’s expenses after the support payments have been made. According to the budget information supplied [by husband], the personal monthly expenses come to $1,175.46 per month. Thus, the support order provides him with $1,637.00 per month over his average monthly expenses. Such an order is not confiscatory.
*234 [Issue 8:]
[Husband’s] net income was found by the Hearing Officer to be $5,773.00. The Hearing Officer awarded Wife $1,025.00 as spousal support, or approximately 18% of his net monthly income. This amount is substantially under one-third.2
Trial Court Opinion at 32-4.
The order of the trial court is affirmed.
. In dissent, Judge Tamilia addresses an additional issue, namely whether the trial court erred in approving the master's inclusion of husband’s monthly pension contribution in husband’s gross income available for support. As the list of issues set forth in text above reveals, this issue was not raised by husband either in his exceptions to the master’s report or in the statement of questions section of his brief to this court. Nor is this issue argued in the body of husband’s brief on appeal. Thus, the issue is clearly waived and we express no opinion on it. Pa.R.C.P. 1910.12; Pa.R.App.P. 2116(a).
. Husband’s argument that the amount of support is more than one-third of his net income is based on his view that the net income figure found by the Hearing Officer was too high. Thus, husband argues, if that figure is adjusted downward, then the support award is one-third of the adjusted income figure. Since we have found that the Hearing Officer’s net income figure was supported by the evidence, the support award is only 18% of husband’s net income, as correctly found by the Hearing Officer.