Commonwealth Ex Rel. Bulson v. Bulson
Commonwealth Ex Rel. Bulson v. Bulson
Opinion of the Court
This is an appeal from a support order. On November 14, 1978, appellee filed a complaint for support under the Civil Procedural Support Law, Act of July 9, 1976, P.L. 586, 42 Pa.C.S.A. § 6741 et seq. At a hearing on January 4, 1979, the evidence established the following facts. Appellant’s net earnings were approximately $350 per week (N.T. 8-10), and appellee’s $149 (N.T. 7). Appellee’s monthly expenses were approximately $830.50. (N.T. 6) In calculating her expenses, appellee included the cost of supporting her child by a prior marriage. (N.T. 22). The lower court ordered appellant to pay appellee $55 per week in support, $5 per week of which was for existing arrearages.
Appellant argues: 1) that the Civil Procedural Support Law violates the due process clause of the Pennsylvania Constitution and the United States Constitution; 2) that the lower court’s order violates the Equal Rights Amendment to the Pennsylvania Constitution, article 1, section 28; 3) that the lower court abused its discretion.
Appellant has waived his first two arguments because he did not make them to the lower court. As a general rule, “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Appellant argues that the lower court abused its discretion in that it took into account the cost to appellee of supporting her child, and also in that the amount was excessive.
It is axiomatic that the lower court has wide discretion in determining the proper amount of support; unless the court has clearly abused its discretion, its order will be upheld. Commonwealth ex rel. Berry v. Berry, 253 Pa.Super. 268, 384 A.2d 1337 (1978); Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978); Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978). In exercising its discretion, the standard the court should apply is that any support ordered must be based on the financial need of the party receiving the support and the financial capacity of the party ordered to pay the support. Henderson v. Henderson, 224 Pa.Super. 182, 303 A.2d 843 (1972).
We also conclude that the lower court did not . abuse its discretion in ordering appellant to pay $55 per week.
Affirmed.
It is also noted that appellant failed to comply with Pa.R.Civ.P. 235, which requires parties who raise constitutional challenges against a statute in civil cases to plead the issue and to give notice to the
Dissenting Opinion
dissenting:
It is true that a stepfather who lives with his wife and her natural child may assume the relationship to the child of in loco parentis. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1971). “The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a parental status, and, second, the discharge of parental duties.” Com. ex. rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). The existence of such a relationship is largely dependent upon the intention of the person assuming the parental status. Com. ex rel. Morgan v. Smith, 209 Pa.Super. 364, 367, 228 A.2d 6 (1967) (dissenting opinion), rev’d 429 Pa. 561, 241 A.2d 531 (1968); D’Auria v. Liposky, 197 Pa.Super. 271, 277, 177 A.2d 133 (1962). In this case, the record is devoid of any indication that the appellant did assume or intended to assume the responsibilities of a parent. Mere knowledge of the stepfather that the natural father was not supporting the child does not create an “in loco parentis” relationship. This is especially true where, as here, the mother was employed and supporting her child prior to the marriage.
Further, to assess the stepfather child support, where only spouse support is sought, is improper. Both the lower court and the majority find support for the award in the expenses covering both Mrs. Bulson and her child. There is no difference between awarding spouse support which takes the child’s expenses into consideration and sua sponte fixing a separate award of child support.
I dissent.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania Ex Rel. Debra BULSON v. Lee BULSON, Appellant
- Cited By
- 13 cases
- Status
- Published