232 Pa. Super. 105 | Pa. Super. Ct. | 1974
Opinion by
This is an appeal by the husband, Donald Collins, from an order of support in the amounts of $40.00 per week for his wife, Elizabeth, and $30.00 per week for their youngest son, Kevin. Mr. Collins contends that the order is excessive and presents either an abuse of discretion or a misinterpretation of the law on the part if the lower court.
The guide for our review in appeals from the denial of support orders is that we will not disturb a support order unless there is a clear abuse of discretion by the court below in fixing the award, or unless the order is based upon a misinterpretation of the law. Hecht v. Hecht, 189 Pa. Superior Ct. 276 (1959). In addition it is well established that the purpose of a support order is to provide a satisfactory allowance for the support and maintenance of the wife and child, not to punish the husband. Therefore, reasonable allowances must be made for the husband’s living expenses. See generally 24 Am. Jur. 2d, Divorce & Separation § §553-54 & 839; Annot., 1 A.L.R 3d 280, 290 & 335. When we apply those principles to the facts of the instant
Mr. and Mrs. Collins were married in 1946 and have four children; all of whom, with the exception of Kevin, have obtained their majority and are not, therefore, included in the support order.
In September of 1973 Mr. Collins moved out of the family residence in Montgomery County. Mrs. Collins, however, continues to reside in the home with two of her sons, Kevin and Donald. Donald, who is twenty-three years old, had recently resigned from the Air Force at the time of the hearing and was not then gainfully employed.
Mr. Collins is a 49-year-old Navy pensioner, and as such receives a weekly income, net taxes, of $108.00. In addition, he also nets $72.00 per week as a self-employed real estate broker, a career he launched three years ago. The evidence indicates, however, that Mr. Collins since his retirement from the Navy has not been working at nearly his full potential or capacity. He failed at numerous jobs prior to his entry into the real estate business; and, despite the currently unstable condition of this latest enterprise, he still finds considerable time to spend away from his office playing
Mrs. Collins has been employed for the last 8% years as a clerk for the telephone company. Her salary for that job nets her $129.00 a week, $84.00 of which she faithfully deposits in her credit union account. At the hearing she alleged and proved expenses of $175.00 per week. These expenses, however, included those incurred in supporting Kevin and Donald, and a $5.00 weekly allowance for their twenty-one year old daughter in college.
Tabulating all these figures for both Mr. and Mrs. Collins, including the total support order of $70.00, we have the following:
Mrs. Collins
Net Weekly Income $129.00
(inc. $34.00 per week savings)
Support for Mrs. Collins per week 40.00
Support for Kevin Collins 30.00
Total weekly income $199.00
Less expenses (including Kevin and Donald) • — 175.00
Total Surplus $ 24.00
*109 Mr. Collins
Net Weekly Income (pension) $108.00
Net Weekly Income (brokerage) 72.00
Total Weekly Income $180.00
Less mortgage, tax and insurance per week —40.00
Less electricity for family residence per week — 6.00 Less beat for family residence per week — 8.00
Total available income for support $126.00
Less support for Mrs. Collins —40.00
Less support for Kevin Collins —30.00
Total income available for bimself $ 56.00
Less expenses ?
Total Deficit ?
This tabulation rather clearly indicates the substance of our difficulty with the support order of the lower court. As the support award now provides, Mrs. Collins will have $199.00 per week available for the support of herself and Kevin, $24.00 more than the total claimed expenses for maintaining her household, and part of which inured to the benefit of Donald. On the other hand, Mr. Collins will only have $56.00 available for the support and maintenance of himself. This result is clearly unconscionable. The support award alone constitutes more than 38% of Mr. Collins’ net income. Coupled with Mr. Collins’ payments of the mortgage, insurance, taxes and utilities on the family residence, his actual support soars to more than 68% of his net income and leaves him virtually impoverished.
If we reduce the weekly support of Mrs. Collins by $24.00, her income and expenses will balance. It will also increase Mr. Collins’ expendable personal income to $80.00. While a substantial discrepancy will still remain between the living standards of Mr. and Mrs. Collins, this difference would be substantially reduced, if not completely eliminated, by Mr. Collins’ more serious attention to his business affairs. That factor may properly be considered in establishing support. See 24 Am: Jur. 2d, Divorce & Separation §§556; Annot., 1 A.L.R. 3d at 197. We also note that the adjustment comports with the $50.00 support payments Mr. and Mrs. Collins negotiated prior to the hearing. See note 1, supra.
Mrs. Collins’ support is reduced from $40.00 per week to $16.00 per week. Kevin Collins’ support remains at $30.00 per week.
It is so ordered.
Watkins, P. J., and Jacobs, J., dissent.
The Collins’ daughter, Mary Beth, is a twenty-one year old senior at California State College in California, Pennsylvania. Support for her was requested at the hearing below but was denied by the trial court Under a prior support agreement between Mr. and Mrs. Collins, which was replaced by the instant order, some allowance for Mary Beth’s support was considered in establishing the agreement at $50.00 per week. The lower court’s denial of support for Mary Beth was not appealed, however.
Hr. Collins did not file an itemized list of expenses, so it is impossible for us to estimate what his reasonable weekly expenses might be.
The evidence indicates that for six months, Mr. Collins lived in his one room office and slept on the couch. He owns no car, and now resides with an aunt in West Conshohocken. He expressed an interest in moving into an apartment.