229 Pa. Super. 108 | Pa. Super. Ct. | 1974
Opinion by
Appellant contends that the lower court failed to properly consider her husband’s earning capacity in setting a support order.
Husband and wife have been separated since June 11, 1972. As a result of injuries sustained in an industrial explosion and numerous disabling medical afflictions, the husband-appellee has been prevented from working at his full capacity as a cement and carpentry worker, at which vocation he earns $3.50 per hour. The wife-appellant, on the other hand, suffers from multiple sclerosis, a progressively incapacitating disease, and has been receiving $142.00 per month in disability benefits.
At a hearing before the Honorable Paul B. Gretnbr, President Judge of the Fifty-Ninth Judicial District, and the Honorable S. L. Ltjnn, Associate Judge of the Court of Common Pleas of Cameron County, it was determined that, in the year prior to the parties’ separation, the appellee had earned $2,198.00 from his employment, and had made withdrawals of $1,700.00 from a mutual fund investment,
Based on these facts, and relying on a stipulation by counsel that the reasonable rental value of the residential dwelling was $70.00 per month, the Court ordered the appellant to pay his wife a total of $124.38 a month, which figure included the following credits:
$35.00 (one-half of fair rental value of home)
13.38 (one-half of taxes and insurance on home)
18.00 (one-half of family hospitalization coverage)
64.38
Appellee was, therefore, ordered to pay $60.00 per month, in addition to the aforementioned expenditures, for the support of his wife. Wife-appellant has appealed said Order, claiming that the lower court should have considered her husband’s full earning capacity, i.e., $3.50 per hour x 8 hrs. x 4 days x 52 weeks, or $5,824.00 a year. Taking one-third of that figure, which would be the maximum amount allowable for the wife’s support, see, e.g., Commonwealth ex rel. Keeth v. Keeth, 223 Pa. Superior Ct. 96, 289 A. 2d 732 (1972), appellant contends she should be entitled to approximately $162.00 per month in addition to a portion of income derived from the mutual fund investment.
Considering the disability of the husband in the instant ease, evidenced by a reduced income at a time the parties were still living together, we do not believe that the court’s order was an abuse of discretion. If the actual earnings and withdrawals from the mutual fund are added and one-third of that sum is calculated, the amount would not reach $100.00 a month. It is obvious that in setting the award at $124.38 a month, the lower court arrived at a figure which is considered
As we said in Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 251, 311 A. 2d 701 (1973): “‘In a support proceeding, the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits.’ Commonwealth ex rel. Friedman v. Friedman, 223 Pa. Superior Ct. 66, 67, 297 A. 2d 223 (1972). Absent a clear abuse of discretion an appellate court will not disturb a support order of the court below ... .”
Order affirmed.
Ai a result of a settlement reached with an insurance comps ny for injuries sustained in the explosion, the appellant invested all or a portion of net proceeds to him in a mutual fund, the Investors Mutual Inc. At the time of the hearing, appellant owned 2396.174 shares, valued at $10.5 per share (average price in 1972).
This figure did not include debts totalling $3,777.88, and a monthly allocation of sums paid for the benefit of Ms wife, such as taxes and insurance.