Commonwealth ex rel. Kallen v. Kallen

200 Pa. Super. 507 | Pa. Super. Ct. | 1963

Opinion by

Montgomery, J.,

This is an appeal from an order entered by the lower court which granted $225 a week for the support of the appellant’s wife and son. There was never any question in this ease as to the right to support; the sole issue being the amount of support.

The parties were married on June 7, 1941, and have one child born May 10, 1947. They separated on June 10,1962. The son lives with the wife in a two bedroom apartment and is a student. The appellant is a physician in general practice and is 61 years of age.

The appellant’s testimony establishes that the gross receipts from his profession in 1961 were $36,338, and he also had $290 of income from other sources; his net income before taxes was $26,033.61, and his income after taxes was $20,660.26. The appellant acknowledged that the net worth of his assets was $324,750, although he claims that the major part of this is in speculative real estate which if liquidated at the present time would not bring this appraised valuation.

It is well settled that the purpose of a support order is to secure such an allowance to the wife and child as is reasonable, having in mind the husband’s property and earning capacity and the station in life of the parties. Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa. Superior Ct. 115, 184 A. 2d 291; Commonwealth ex rel. Warner v. Warner, 194 Pa. Superior Ct. 496, 168 A. 2d 755. The husband’s ability to pay or capacity to earn is an important criterion in the determination of the support order. Commonwealth ex rel. Mass v Mass, 170 Pa. Superior Ct. 545, 87 A. 2d 793. A wealthy father has a legal duty to give his children the advantages which his financial status indicates tc be reasonable. Hecht v. Hecht, 189 Pa. Superior Ct. 276, 150 A. 2d 139. The lower court, in consideration of these fundamental principles of law, reviewed the testimony of the appellant’s finances and earning ability and concluded that the appellant is a person of means with a fairly substantial income who had been able to accumulate a personal estate of over a quarter-million dollars. The court was also of the opinion that the appellant’s returns from his various business transactions and investments were substantially greater in amount than appellant disclosed. The lower court did not accept the itemized expenditures asserted by the appellee to be necessary for her and the son’s support and which amounted to approximately $315 per week. After considering the credible evidence as to the appellant’s finances and the standard of living to which the wife and son had been accustomed, the court entered an order for $225 per week for the support of the appellee and the son.

On an appeal by a husband challenging a support order, the function of the appellate court is to determine whether there is sufficient evidence to sustain the order of the hearing judge and the appellate court will not interfere unless there has been a clear abuse oí discretion. Commonwealth ex rel. McCuff v. McCuff 196 Pa. Superior Ct. 320, 175 A. 2d 124; Common wealth v. Williams, 178 Pa. Superior Ct. 813, .116 A. 2d 297. The amount which the husband should. be; ordered to pay in a nonsupport case is largely. within thé discretion of the trial judge who is not. restricted to the husband’s actual earnings, • but may. also consider his earning power and standard of living, and the Superior Court will not interfere with the- order unless the amount awarded for support is grossly inadequate or excessive under the circumstances. Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A. 2d 833; Commonwealth ex rel. Edelman v. Edelman, 193 Pa. Superior Ct, 570, 165 A. 2d 92; Commonwealth ex rel. Trichon v. Trichon, 189 Pa;. Superior Ct. 395, 150 A. 2d 176.

■ Even if we disregard the appellant’s net worth, the income from his profession and his admitted additional income of $.3,900' for the next four years from his investments are sufficient to warrant the amount of the support order entered by the lower court.

The appellant further.contends that the lower court, without mention of any specific items it ;may have questioned/ arrived at a lower amount than the requested one of $315 per week, and in doing so failed to indicate the method by which it reached its independent award, which indication, the appellant declares, is required by Commonwealth v. Gleason, 166. Pa. Superior Ct. 506, 72 A. 2d 595. In that case it was held that orderly procedure indicated the necessity for additional testimony as to the husband’s- actual income, or his earning power in terms of potential income and the entry of an order based upon specific findings from' that testimony. In the present case the lower-court had before it the husband’s own testimony and other evidence of his earnings, income and net' .worth-; the detailed evidence of the needs of the wife and child; and ' testimony which clearly - established the relatively high standard of living to which the family was accustomed. The court stated that it did not accept the itemized necessities of the wife at face value and also questioned the veracity of the appellant as to the disclosure of his entire income. The lower court has obviously made its own specific findings and deductions based on the evidence and accompanying circumstances, and the record fully substantiates its decision and order.

Order affirmed.