Atkinson v. Atkinson

TAMILIA, Judge.

Christopher Atkinson, who was 12 years of age at the time of the Order in question, lived with his mother, appellee/defendant, who was the primary caretaker from birth until August, 1990. Custody was awarded to the father by court Order, apparently resulting from the child’s wishes but against those of the mother (T.T., 7/23/91, p. 5). Appellee remarried after divorcing appellant and had two children from the second marriage, the first being deceased. Her second child was born in 1989 and was one and one-half years of age at the time of the Order in question. After receiving testimony that *148appellee remained in the home to take care of her child, the court determined that she had zero support obligation for Christopher as she was unemployed and assuming full-time care for her son. Appellant maintains this was error as the court was required to establish appellee’s earning potential and to frame a reasonable support Order based on this potential. Appellant maintains that a mother should be required to pay support for a child of her first marriage who is living with his father even though she is a full-time caretaker for the child of her second marriage. Appellant would impute a minimal $300 per month earning to appellee, which would suggest an Order pursuant to state-wide support guidelines of $59 per month. Appellant’s supporting argument for this issue is that the support burden must be shared equally by the parents and a father would be required to have an income amount imputed to him if he remarried and had a child for whom he was caring for full-time.

The trial court, while finding the issue a troubling one, relied upon the nurturing parent doctrine whereby, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered, citing Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707 (1986); Butler v. Butler; 339 Pa.Super. 312, 488 A.2d 1141 (1985). Apparently there is no problem with the rule when the mother is caring for the children of the marriage. It is when the mother is caring for her children of a second marriage that the conflict arises. Judge Blahovic determined that the issue was not whether the mother was caring for her children as opposed to their children, but whether under the facts of the case what the earning capacity would be. This is the correct analysis under these facts, particularly since there is no evidence of the mother’s earning capacity based on her work record or employability. On this record imputing earning capacity to the mother is a fiction which simply shifts the burden of supporting the wife’s child of the first marriage to her second husband, who has no legal obligation to do so.

The concept of imposing a support Order based on earning potential is of long standing in support law and derives from *149the principle that a person who has a support obligation may not withdraw from income producing endeavors to defeat the right of support to his/her dependents. It has never been the law that a mother who elects to care for her young child is chargeable with voluntary withdrawal from income-producing activity to defeat the right to support her child by a previous marriage.

The record in this case is totally devoid of any evidence that the mother ever worked, or that her son, who lived most of his life with her before electing to go with his father, did not have the benefit of her full-time nurturing. Without proof of her income-producing capacity and the prior practice as to the older child, this Court has no basis upon which to overrule the judgment of the trial court. If the appellant is attempting to create social policy based on the realities of today’s family structure and the Equal Rights Amendment, it is misguided at best and anti-family at worst. To place a value on appellant’s homemaking and nurturing duties which can be assessed against her husband, thereby establishing a support amount by virtue of his savings to create a third-party beneficiary in the child with the father, is so convoluted as to render support evaluations speculative and conjectural.

The appellant also ignores the exceptional burden women carry in our society for child rearing and nurturing in alleging that they should not be treated differently than husbands and fathers in the nurturing parent application. Unquestionably, some fathers will fall within the ambit of the nurturing parent doctrine when it comes to applying it to support duties for prior families. Mothers, however, by every measure and study that addresses this issue, are far and away more deeply involved and effected by the nurturing requirement than fathers and without question are generally impoverished by separation and divorce when children are involved. To attempt to restructure the nurturing parent doctrine as detailed in the appellant’s brief will simply add to an already lopsided and unbalanced burden on women caring for children. It is another destructive step in a culture which appears bent on destroying family stability. It also will increase the pressure *150on women with second families to abort pregnancies and to abandon children, or to give up on second marriages with children when the stress of either going to work or forcing the second husband to support her children by a prior marriage becomes unbearable.

The Order of the trial court is affirmed.

DEL SOLE, J., dissents.