14 A.2d 164 | Pa. Super. Ct. | 1940
Argued March 12, 1940. This is an appeal by defendant, Paul H. Barnes, from an order of the Municipal Court of Philadelphia County for the support of his wife. The order increased a previous order of $5 per week to $20 per week.
On January 3, 1930, upon information of appellee and after hearing, Judge WALSH in the municipal court entered a support order against appellant in the amount of $20 per week. Appellant petitioned to vacate or reduce the order, and on August 5, 1932, Judge WALSH reduced the order from $20 to $10 per week. On February 18, 1938, appellant's petition to vacate the order of January 3, 1930, and to remit all arrears was dismissed by the court. On August 3, 1938, upon petition of appellant and after hearing, Judge TUMOLILLO further reduced the order against appellant for the support of appellee to $5 per week. On June 27, 1939, appellee filed a petition to increase the order of support, alleging that her own financial and personal circumstances had adversely changed, and that the financial circumstances of appellant were such as to warrant an increased support order. On August 30, 1939, the order against appellant was increased by Judge PIEKARSKI to $20 per week. On September 22, 1939, appellant filed a petition for rehearing, which was granted. Thereafter, the court affirmed the order previously made on August 30, 1939. Appellant, on November 21, 1939, filed a petition for review and modification of the order of August 30, 1939; the petition was dismissed. This appeal was then taken by appellant from the order of August 30, 1939. *399
Appellant presents two propositions: (1) The order of August 3, 1938, was res adjudicata; (2) the order of August 30, 1939, was excessive.
1. The first contention is clearly without merit. We have frequently stated that orders in nonsupport cases have never been regarded as final, in as much as they may be increased, reduced, or vacated where the financial condition of the parties changes, or where other proper reasons are shown. Com. ex rel. Crabb v.Crabb,
2. The evidence justifies an increase of the order of $5 per week, but we are of the opinion that the order of $20 per week is somewhat excessive, "having in view the property, income and earning capacity of the respondent": Com. ex rel. Fort v. Fort,
Appellant had testified at the hearing on August 30, 1939, that the net earnings from his business during the year 1938 were $2,000. The rehearing on September 22, 1939, was primarily for the purpose of correcting this alleged error. In his petition for rehearing appellant stated that his testimony under cross-examination, on August 30, 1939, wherein he said his net earnings from his business during the year 1938 were $2,000, was an error. An examination of the testimony leads us to believe that appellant may have misunderstood the question, and made his answer on the basis of gross earnings from his business, although he gives no items of deductible expenses. There is testimony to the effect that appellant has a small interest in his aunt's estate and is a co-executor, but we find nothing to indicate what, if anything, he may receive from this source.
It is true, as appellee argues, that a judge, in passing upon the facts in such a case, is not bound to accept as true the statements of a defendant, but can make his own deductions from the evidence and the attending circumstances. Com. ex rel. Elgartv. Elgart,
Appellee's physical condition seems to have changed for the worse, and her independent income is shown to have been reduced.
Giving full consideration to appellant's income from his property and business at the time of the hearing, and to such earning capacity as he may have, an order of support for appellee should not exceed $15 per week. An income and earning capacity of about $2,300 per year does not legally warrant an order for appellee in excess of one-third thereof. Com. ex rel. Fort v.Fort., supra, p. 154.
The order of support for appellee will accordingly be modified.
The order of the court below of August 30, 1939, is reduced to $15 per week. Each party to pay his or her own costs on appeal.