Marter v. Ross

WATKINS, Judge: This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Family Court Division, by the appellant, Barbara Marter, which directed the appellee, Alan J. Ross, to pay $60.00 per week for the support of the parties two children. The parties were married on October 12, 1960 and were divorced on May 25, 1977. The two children, aged nine and six at the time of the hearing, have resided with the appellant-mother since the separation of the parties. The appellant-mother remarried on June 2, 1978. On May 10, 1979, the appellant-mother petitioned for the support of the children seeking $160 per week. After a hearing, the support order was entered on September 25, 1979 in the amount of $60.00 per week. A petition for reconsideration was filed on October 17, 1979, and denied on November 26, 1979. Two appeals were filed, one from the order of support dated September 25, 1979 and one from the order refusing reconsideration on November 26, 1979. These appeals were consolidated for appeal to this Court. The court below found that the appellee’s total potential net income was $300.00 per week and that the appellant had a net income of $300 per week. Although there was no evidence of the earnings of the appellant’s husband or whether or not he contributed to the children’s support, the court below inferred that he had a substantial income from various businesses and real estate holdings. This speculation by the court below that any of such assets were used to benefit the appellant’s children was error. As this reasoning was the basis for the order of $60.00 per week there should have been evidence to support the present husband’s contribution as he was under no obligation to support his wife’s children by a prior marriage. Most certainly evidence of voluntary contribution by a present spouse to the support of the children is relevant [244] and can be properly considered by a trial judge in determining a support order. Commonwealth ex rel. Mainzer v. Audi, 266 Pa. Superior Ct. 122, 403 A.2d 124 (1979). A support order cannot rest upon the speculation of the trial judge as to the extent of a parent’s income when there is no evidence of that income on record. It would follow that this would also apply to a parent’s new spouse. Commonwealth ex rel. Goodman v. Delara, 219 Pa. Superior Ct. 449, 281 A.2d 751 (1971). The case is remanded to the court below for further hearing for the determination of the contribution, if any, of the husband to the support of the children as set forth in this opinion. BROSKY, J., files a dissenting opinion.