Commonwealth ex rel. McQuiddy v. McQuiddy

*396Dissenting Opinion by

Spaeth, J.:

The relatrix, Katherine S. McQuiddy, appeals from an order entered by a judge of the Court of Common Pleas of Bucks County reducing a pre-existing support order from $100 to $50 per week. Although I recognize fully the very narrowly circumscribed appellate review of support orders, I cannot agree that the reduction should stand.

I

It is axiomatic that in nonsupport proceedings we will not interfere with the lower court’s determination absent a clear abuse of discretion. Commonwealth ex rel. Voltz v. Voltz, 168 Pa. Superior Ct. 51, 53, 76 A.2d 464, 465 (1950). Indeed, where, as here, the testimony of the defendant concerning his assets and earnings is challenged, as the reviewing court we must give considerable weight to the conclusions of the lower court. Commonwealth ex rel. Kane v. Kane, 193 Pa. Superior Ct. 98, 101, 163 A.2d 925, 926 (1960). This deference is appropriate since the judge of the lower court has seen and heard the parties. Commonwealth v. Wingert, 173 Pa. Superior Ct. 613, 617, 98 A.2d 203, 205 (1953).

The narrow issue presented by this case, then, is whether the lower court’s action constituted a clear abuse of discretion. In making this determination, we must recognize that

“ [a] n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.”

Man O’War Racing Assn., Inc. v. State Horse Racing Comm., 433 Pa. 432, 451 n.10, 250 A.2d 172, 181 n.10 (1969), citing Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

*397II

The testimony of defendant-appellee in this case was faltering and evasive. Nonetheless, despite vigorous cross-examination of appellee by counsel for appellant, the lower court “chooses to accept the testimony of a member of this [Buck’s County] Bar at face value” (Majority opinion at 395). In addition, the lower court strongly disapproved of the attempts by appellant’s counsel to question appellee’s credibility (Id.; N.T. 77, 78, 111-112). In light of this record, I submit that the lower court’s conclusion that appellant’s testimony was credible, see Majority opinion at 393, was “manifestly unreasonable,” Man O’War, supra, and hence constituted a clear abuse of discretion. Since determinations of credibility are normally within the province of the trier of fact, Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 323, 249 A.2d 563, 566 (1969), it is necessary to explain the basis of my disagreement with the lower court.

Appellant and appellee, parents of two very young children, entered into a separation and property settlement agreement on October 11, 1973. In clause six of that agreement, appellee agreed to pay $90 weekly for. the support of his children and wife; this amount was-to increase to $100 per week as of September 1, 1974. The parties simultaneously executed a consent support order, to be recorded only if appellee fell fourteen days in arrears in the support payments. The parties were divorced in February, 1974.

The consent support order was entered of record at the end of July, 1974. At the beginning of August, appel-lee, without judicial approval, reduced his support payments to $50 per week. On August 5, 1974, appellee filed a petition seeking modification of the consent order. Following a preliminary mandatory conference1 with a *398domestic relations officer, held September 20, 1974, a hearing was conducted on November 22 and December 5, 1974.

At the hearing, appellee explained that at the time he executed the consent support order, he was a salaried employee of a construction company earning a gross weekly salary of $200; in addition, he reportedly earned $50 per week from other sources. In December, 1973, however, appellee left his position with the construction company to enter the private practice of law in Quaker-town as a sole practitioner. The concomitant drop in earnings, according to appellee, made it impossible to maintain the support payments at the agreed level.

In light of this explanation, it was crucial to determine what other assets might be available to appellee for payment of support. I find appellee’s testimony on this important issue unsatisfactory. For example, on direct examination, appellee testified that he owned a one-fifth interest, worth roughly $2,800, in the office building in which he practiced law. The property was actually owned by a corporation in which appellee was one of five principals (N.T. 17). It was purchased in February of 1974, less than two months after appellee had entered the private practice of law, and during the period in which appellee was required to make a weekly support payment of $90. (N.T. 17) Appellee’s capital contribution was $2,000; $800 of which was paid in cash or its equivalent,2 while $1,200 was obtained as a loan from the woman who subsequently was to become appellee’s second wife. (N.T. 18-19) It is incongruous that appellee should have access *399to such sums of money in February, 1974, and plead poverty in August, only six months later.3

More important, it clearly appeared on cross-examination that appellee had not disclosed his interest in the office building at the preliminary mandatory conference held on 'September 20, 1974,4 Appellee’s explanation of the omission is quite unconvincing when it is considered that appellee is an attorney:

“Q. And you owned one-fifth of a sixty-nine thousand dollar piece of property?
A. Well, the corporation owns the land.
Q. You don’t consider you own the land?
A. No. I’m a prospective stockholder. That’s what I had — I had stock.
Q. I see.
A. You didn’t ask me about stock.
Q. But, did you tell us about the stock at that time?
A. You didn’t ask me.
Q. I asked you about assets. Do you remember that?
A. No. You asked me about real estate.” (N.T. 28).

This semantic finesse also characterized appellee’s testimony concerning his real estate interests in Columbia, South Carolina:

*400“Q. What about a piece of property in Columbia, South Carolina? Do you own property there?
A. I don’t.
Q. You absolutely do not?
A. I absolutely do not.
Q. Do you hold a mortgage for a piece of property in Columbia, South Carolina ?
A. I do not.
THE COURT: Do you have some financial interest there we might learn about, Mr. McQuiddy?
THE WITNESS: I don’t have any financial interest in Columbia, South Carolina.

By Mr. Hurowitz [appellant’s counsel]:

Q. Do you have any financial interest in any place in South Carolina?
A. Well, any place there ?
THE COURT: The answer has been given, Mr. Hurowitz.” (N.T. 34-35).

It is regrettable that the court curtailed the cross-examination at this point, since further questioning would have accented the evasiveness of appellee’s testimony.

At the second day of the hearing, on December 5, 1974, it became evident that appellee had not disclosed the ownership of the South Carolina property at the preliminary mandatory conference:

“Q. [by appellant’s counsel]: Why didn’t you tell Mr. Anderson [domestic relations officer], myself or your attorney at the preliminary conference that you were the owner of property in South Carolina?
A. (Pause)
Q. Why didn’t you tell us in September you were the property owner?
*401A. The property was under agreement of sale, and had been for several months.
Q. Mr. McQuiddy, you didn’t think you were the owner as of that time?
A. I was not the equitable owner of the property. It was under agreement of sale.
Q. When you told Mr. Anderson what your list of assets were, you didn’t think you had any interest in any other property other than what you told Mr. Anderson at that hearing in September ?
A. THE WITNESS: I had the legal ownership —I knew that — but I knew it was under agreement of sale to be sold in October.
Q. And in your opinion, sir, when you listed your assets as one piece of property with a market value of twelve thousand dollars, you did not consider you had any worth in this South Carolina property as of the preliminary hearing?
A. I know I didn’t have any worth in it.
THE COURT: Let us lay the cards on the table. You did own a property that you did not disclose to the support officer because you felt that you did not at that time have an equitable interest in it?
THE WITNESS: (Pause)
THE COURT: The question obviously is: Did you have an asset at the time which you did not disclose?
THE WITNESS: Well, then, under that circumstance, yes, I had an asset.” (N.T. 46-49).

Therefore, although subsequent testimony suggested that appellee had lost money on the sale of the South Carolina property (N.T. 68-69),5 his admitted failure to disclose *402his ownership interest at the preliminary conference seriously impugned his credibility.6

Appellee’s testimony was further suspect in light of his initial evasion of service of a subpoena duces tecum and his subsequent failure to produce the documents called for by it. A deputy constable testified that he telephoned appellee on November 18, 1974, and read the contents of the subpoena to him. Although the constable arranged to meet appellee in his law office on November 20, appellee never appeared on that date to accept service, and failed to respond to the constable’s written note asking appellee to contact him. (N.T. 95-96)

The subpoena was ultimately served outside the courtroom on November 22, immediately prior to the first day of the hearing on the petition to modify. The testimony indicated that appellee accepted service reluctantly. (N.T. 96)

Although he had personally received the subpoena appellee brought no documents to the continued hearing on December 5. His explanation for his failure to do so was unconvincing, again especially when it is considered that appellee is an attorney:

“THE COURT: Were you served with a subpoena on November 22nd asking you to bring your records of real estate transactions ?
THE WITNESS: Outside of your courtroom, yes, Your Honor, I was.
THE COURT: And you do not have the papers with you?
THE WITNESS: The subpoena was for the 22nd of November. That’s when I was supposed to bring them.
*403MR. HUROWITZ: This is a continuing hearing.
THE COURT: Did you have them at that time, Mr. McQuiddy ?
THE WITNESS: No. I was served in the courthouse. I was served when I got here.
THE COURT: Why don’t you have them today?
THE WITNESS: Because I wasn’t served with a subpoena to bring them here today.
THE COURT: ... He has told me now that he was not subpoenaed to bring them with him today. But, I share with you in the belief he should have, if that subpoena was validly served.” (N.T. 52-53)

The records that appellee failed to produce may have provided written confirmation of appellee’s testimony concerning the extent of his assets. Appellee’s failure to comply with the subpoena, and his explanation for his non-compliance, suggest he had something to hide.

Ill

The lower court found that appellee left his salaried position with the construction company in a good faith attempt to further his professional career. Thus, this is not a case like Commonwealth ex rel. Haley v. Haley, 199 Pa. Superior Ct. 235, 237, 184 A.2d 155, 157 (1962), where the husband left a higher paying position without adequate justification.

I can understand appellee’s desire to enter the individual practice of law. His professional aspirations,7 however, must be balanced against the needs of his two young *404children. I consider that the balance must be struck in favor of the children.

For the foregoing reasons, I conclude that the trial judge abused his discretion in reducing appellee’s support obligation. Therefore, I would vacate the order below and remand with instructions to conduct a further hearing consistent with this opinion.

Hoffman, J., joins in this opinion.

. Bucks Co. R. Crim. P. 5001(c) requires such a conference *398in any proceeding for termination or modification of a support order.

. Appellee 'testified that $350 of his capital contribution was financed by legal services that he rendered to the corporation (N.T. 18).

. During the early part of 1974, appellee also wrote a check for $6500, applied towards the purchase of an apartment building in Columbia, South Carolina. (N.T. 54) Had appellee refrained in early 1974 from making these investments in real estate, he might not have had to testify, at the November 22 hearing, that “I would have liked to pay more [than $50 per week support]. I would love to be able to afford to pay more, but I don’t make that much money.” (N.T. 22)

. The financial statements that the parties filled out and submitted to the domestic relations officer prominently indicated that the statement “will be presented to the court should a hearing *400become necessary. You are required to complete this form to the best of your ability.’/ See, e.g., Record at 113b (Exhibit D-2).

. Appellee offered no written records to support his testimony that he had lost money on this transaction. Asked why he did *402not adduce written proof to substantiate his contentions, appellee replied that “I don’t need records. I have it in my head.” (N.T. 68)

. This was, at least potentially, a substantial asset, important in determining the amount of support appellee should pay. See note 3, supra, and accompanying text.

. It is noteworthy that appellee’s status as a lawyer was due in no small part to appellant, who worked as a bank teller during the years in which appellee was a law student. (N.T. 107) In her efforts to support her children adequately since her separation, she has worked in a Burger King restaurant, and at a cocktail lounge in Doylestown, Pennsylvania.