191 Pa. Super. 51 | Pa. Super. Ct. | 1959
Opinion by
The parties to this proceeding were married on August 24, 1957; he then was 64 years, and she 59 years, old. It was a second marriage for each of them. Until the final separation on January 30, 1958 when the defendant left his wife, they lived in a “Duplex” apartment house owned by the wife. She has received $75 per month rent from the other apartment; her monthly payment on a mortgage against the premises amounts to $82. At the time of her marriage she quit her employment as bookkeeper with a responsible business concern, which had paid her $85 per week. She testified that, because of her age, she is not now acceptable for steady employment. She however has worked intermittently since the separation in similar employ
Following the hearing on August 28, 1959, the court entered an order directing the defendant to pay his wife $45 per week for her support. The defendant is the owner of a building at Twentieth Street and Fair-mount Avenue in Philadelphia where he has operated a neighborhood drug store for more than 20 years. Supplementing his own services in the conduct of the business he employs one full-time, and two part-time pharmacists, in addition to two part-time soda clerks. He testified that his gross sales for the year 1957 were $70,775, and that amount appears in his federal income tax return for that year. His net income shown by that return, which was received in evidence, was but $4,736 and that amount included $1,185 received in rentals from three apartments in his building. He testified that the tax return reflected his entire income from every source for that year. Shortly after the date of the above order the court granted a rehearing on the defendant’s application. At the rehearing on January 19, 1959, an accountant who keeps the defendant’s books and who prepared his tax returns, testified that out of his income of $4,736 for the year 1957 this defendant paid federal income taxes which further reduced his net income to $3,831. An examination of the 1957 return was ordered by the office of the District Director of the Federal Internal Revenue Service but after an audit the defendant’s return was “accepted as filed.”
The lower court on February 17, 1959, following the rehearing, denied the defendant’s application for reduction in the amount of the order. In the opinion
Prior to tbe marriage tbe wife took tbe defendant to her lawyer where an antenuptial agreement was entered into in which tbe defendant waived bis every interest in her property and estate. She was not asked to reciprocate as to bis estate and she still has an inchoate dower interest in defendant’s real property. There is no evidence that tbe defendant bad any income except from bis business and tbe apartments in bis building. Tbe rents are not questioned as to amount and a total of $1,185 income for a whole year from tbe three apartments attests to their modest character. Tbe court was not bound to accept tbe 1957 federal tax return as reflecting tbe defendant’s total earnings for tbe year (Com. ex rel. Rankin v. Rankin, 170 Pa. Superior Ct. 570, 87 A. 2d 799) but when the audit made
The relatrix in her letter to the defendant on March 2, 1958 stated: “I think perhaps I will be able to manage with $35 a week”, but at the hearing she testified that in the letter she had miscalculated the amount that she would require. From a consideration of the whole record we are convinced that even that amount is excessive, and that $30 per week is the limit of the defendant’s ability to pay, in the light of his earnings, his earning power and his property and assets. Cf. Com. ex rel. Volinski v. Volinski, 180 Pa. Superior Ct. 348, 119 A. 2d 648; Commonwealth ex rel. Yeats v. Yeats, 168 Pa. Superior Ct. 550, 79 A. 2d 793.
The amount of the order is reduced to $30 per week and as so modified the order is affirmed.