173 Pa. Super. 108 | Pa. Super. Ct. | 1953
Opinion by
The husband has appealed from an order requiring him to pay |20 weekly for the support of his wife and child, and complains (1) that the court below erred in refusing his motion for continuance to enable him to take depositions in Washington, D. C. and (2) that the order is too high.
During the cross-examination of the relatrix, appellant requested the court below for a continuance for the opportunity as stated by his counsel, “. . . to procure the deposition in Washington to show that after the separation the lawyer [representing the rela-trix] called to Mr. Glener and said she wanted a divorce but that was what caused the separation.” This motion was denied on the ground that appellant’s counsel had known of the matter which the depositions would have disclosed even prior to the institution of these support proceedings; that he had ample time to obtain the same in order to produce such testimony at the support hearing; that the subject matter involved was long known to appellant’s counsel; that his failure to prepare for trial by the earlier taking of depositions afforded no basis for a continuance. No element of surprise was disclosed by the record.
There is no merit to appellant’s final complaint relating to the amount of the order. At the time of trial appellant was earning a net income of $31.60. There was evidence that shortly prior thereto appellant was earning $125 per week and on some occasions was earning as high as $150 to $175 per week. On this phase of the case the court below found: “We have carefully considered and weighed the Husband’s testimony anent his earnings. If his earnings prior to and during coverture is any criterion of his capacity to earn, we cannot accept his statements as to his present earnings or ability to earn as true. We are convinced that Husband is capable of earning much more than the $40. a week gross he contends he now receives working for his sister.”
A court is not restricted to a husband’s actual earnings as the sole basis for a support order, but is entitled to consider also his earning power, his property holdings and all attendant circumstances. Commonwealth ex rel. Mass v. Mass, 170 Pa. Superior Ct. 545, 87 A. 2d 793; Commonwealth ex rel. Wieczorkowski
Order affirmed.