Banks v. Banks

CAVANAUGH, Judge,

concurring and dissenting:

I concur with part one of Judge Spaeth’s opinion which found that the Court below properly heard appellee’s petition to reduce support.

I dissent from part two of the opinion and the order of remand directing the court below to reconsider appellant’s petition to increase support and appellee’s petition to reduce support.

The court below found, after a lengthy hearing covering approximately 150 pages of testimony, that the appellee’s income had been reduced from $15,000 per year in 1977 to $10,000 per year in 1978. The court below reduced an order of support in the amount of $125.00 per week for support of one child to $75.00 per week. The evidence established that appellee worked as a salesman of industrial lighting on a commission basis. At the hearing, he produced a financial breakdown which purportedly showed his income from various employers during 1978. The appellee had no other income during the period in question except his earned income. The only major asset which the appellee owned was the house in which he lived which had a market value of about $30,000 against which there were a mortgage and a note totalling about $26,000. Appellee purchased his wife’s interest in the house and in order to do this he borrowed $15,500 from his father which obligation was represented by a recorded note.

Appellee testified at length concerning his changed circumstances which basically consisted of a reduction in his earnings. He introduced into evidence a breakdown showing the various employers for whom he worked in 1978 and the amount that each employer paid him. Since business *452was not as good as it had been in previous years his income decreased. While appellee did not introduce copies of his federal or state income tax returns, W2 Forms, or 1099 Forms for the year 1978, he was not required to do so. As the majority notes on page 1374, footnote 4: “He could also, as he did, state from memory what his income and expenses were, offering his exhibits as a summary of what he remembered.” (emphasis added). Yet the majority states at page 1375 “. . . [CJareful scrutiny is required in evaluating his allegations of reduced income. The lower court's opinion does not indicate any such scrutiny but instead appears to be based upon its acceptance of the father’s self-serving testimony and exhibits.” The court below found appellee to be credible and based its decision on his testimony and exhibits as he was the principal witness in support of the petition to reduce the order. To characterize his testimony as “self-serving” and therefore somehow suspect, is in the context of this case, not appropriate.

The majority opinion cites Commonwealth v. Miller, 202 Pa.Super. 573, 577, 198 A.2d 373, 375 (1964) as standing for the proposition that the net income of the father is not an infallible test for earning capacity. This is especially true when the father is in business for himself and is allowed “substantial business ‘expenses’, items of depreciation and sundry other deductions which enable him to live luxuriously before spending his taxable income.” 202 Pa.Super. at 577, 198 A.2d at 375. We do not disagree with the majority’s analysis of the Miller case. However, it is not applicable to the facts of the case before us. In the instant case the appellee was not in business for himself and was only a commission salesman. There was no evidence that he was allowed substantial business expenses or “sundry other deductions” which enabled him to live luxuriously.

The majority also cited Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974) which reversed an order reducing support where the husband’s investments had increased, he continued to own substantial real estate and jewelry and spent substantial sums of money on trips to Canada, Israel, *453Italy and the Caribbean. In the Shuster case, supra, there was evidence that the husband’s net holdings in securities had increased from $350,000 in June 1970 to $471,000 in May 1971 and that in addition he owned some nineteen pieces of real estate and jewelry worth approximately $30,000. The facts of the Shuster case, supra, are strikingly different from the facts before us.

The majority opinion notes that the appellee transferred about $8,800 in a Keogh plan during the year 1978. Appellee explained this by saying that it was a “rollover” from one account to another. A “rollover” generally signifies a transfer from one retirement plan to another and does not represent an increase in assets. The majority opinion also notes that appellee took two four day trips out of the country during the period in question and appellee testified that each of these trips costs about $200 to $300. Appellee also rented a room in a house in Margate, New Jersey for two months in the summer for a total rent of $355. These points were raised on cross-examination and the majority has determined that the court below erred in not discussing in its opinion the points raised on cross-examination. Page 1375.

A finding of an abuse of discretion is not lightly made and is determined only upon the showing of clear and convincing evidence that would require reversal of the lower court. Com. ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 127, 326 A.2d 908, 910 (1974). I have carefully reviewed the record in this case and respectfully disagree with the majority’s finding that the court below has clearly abused its discretion in finding the husband’s testimony to be credible and reducing the order of support from $125 to $75 per week. The court in its opinion analyzed the evidence and the fact that it did not discuss in detail all of the matters raised on cross-examination does not, in my opinion, justify a remand of the case for a rehearing. The opinion of a hearing court cannot reasonably be expected to cover every aspect of the testimony on direct and cross-examination in an attempt to satisfy an appellate court that nothing escaped its attention.

*454Toward the beginning of the hearing before Judge Canuso counsel for.appellant moved for summary judgment which motion was denied by the hearing court. The court stated (notes of testimony, page 26): “. . .1 want to hear as much as I can, and if you don’t ask I will find out myself before I decide the case. So actually what I am saying is lets get all the information and testimony that we can on which I can base a judgment.” The petition to decrease the order of support was heard at length and the opinion of the hearing judge indicates that he carefully considered the evidence prior to entry of his order.

I would affirm the order of the court below.