Holcomb v. Holcomb

OLSZEWSKI, Judge,

concurring and dissenting.

I agree with the majority that the trial court did not abuse its discretion in the determination of Husband’s monthly income to be $3,272. Further, I agree with the majority that 23 Pa.C.S.A. § 4352(e) is not applicable to the second issue, whether the order of support should have been modified as of the date of emancipation with Husband receiving credit for excess payments made from such date, because such statute relates only to arrearage situations. However, I respectfully disagree with my learned colleagues as to their disposition of the second issue.

While I am most reluctant to disagree with the majority, I find that to agree would overrule our holding in Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986). In Miller, we held that a husband could receive credit for support payments made directly to his child after the date of such child’s emancipation. Id. at 198, 509 A.2d at 404. In the instant case, however, the majority finds that Husband can receive credit for excess post-emancipation support payments made only after the date of the petition to modify the support order, not the date of emancipation. See infra. 23 Pa.C.S.A. § 4323(a) states that the “court shall not order either or both parents to pay for the support of a child if the child is emancipated.” Id. Hence, the statute recognizes that a parent cannot be ordered to pay support for a child after the date of emancipation and Miller recognizes that a parent can receive credit for such payments made following the date of emancipation. To allow Husband credit for excess support payments made only back to the date of the petition would overrule Miller, which we have no power to do. Therefore, I find that the trial court abused its discretion in ordering credit to be given to Husband for excess support payments made only after the date of the petition, as credit should have properly accrued to Husband for such payments made beginning on the date of the child’s emancipation. Miller, supra.