192 Pa. Super. 441 | Pa. Super. Ct. | 1960
Opinion by
This is an appeal by the defendant from an order of the County Court of Allegheny County directing him to pay $50 per week for the support of his two children, Carol 8 and Danny 13.
The children reside with their mother, who is a trained social worker employed by the Board of Education at a take-home salary of $379 per month for ten months a year. The parents separated in February 1958 and were divorced August 28, 1959.
The defendant, according to his brief, is self-employed. Arguing that an order will hamper and hinder him in his profession as a real estate broker, he hopes to avoid any order of support for his children by refusing to testify or give any information concerning his income or his estate.
Presumably, every able bodied man has earning capacity. The defendant was before the trial judge. If he were sick or crippled or aged, such fact would have been evident to the court. Through his counsel, defendant has indicated that he is a real estate broker, and that he intends to carry on that profession. Through his counsel, he has claimed his ability to pay $25 per week and for all clothing and doctor bills of the children. There is evidence that during the summer prior to the hearing the father voluntarily paid for camp for one of the children. Counsel for the defendant volunteered that his client spent $200 at the Rodel Shalom where the children were registered for Sunday School.
The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation laid on them by nature itself. 1 Blackstone’s Commentaries, 447. There is no law of life more universal, nor more ancient. It is the purpose of man made law to enforce this duty and not to create technicalities whereby the duty created by natural law can be avoided.
Although the evidence of the father’s earning capacity is meager, there is evidence from which the court could conclude that this defendant was of sufficient means and ability to support his children to the extent of the order. The defendant admits he is engaged in a professional pursuit. He presented no evidence that he has any other dependents, or any unusual expenses or debts, or disabilities. From the evidence, it appears that the father has the earning capacity of a profes-.
The appellant contends that he is voluntarily furnishing suitable maintenance for the children. The mother provides a home for the children in a house owned by her. The evidence shows that she was buying most of their clothing. When the defendant’s counsel suggested that the defendant would pay the clothing and medical bills for the children, the mother said “I cannot wait for him.” She said “Every time we ask, I have to wait for months.” The defendant’s counsel, in effect testifying for his client who refused to testify, indicated by records that the defendant spent $3S.61 for the children’s clothing from January 1, until September 22, 1959. The defendant’s counsel admits that the defendant owed a substantial medical bill for the children. There is evidence that the wife also gave the children spending money. The wife said that she was paying all the education, rent, food, camps and violin lessons. Counsel for the wife was “willing to say she was paid $25 on an average a week” for the support of the children. The evidence shows that the defendant was not voluntarily providing suitable maintenance for his children at the time of the hearing.
The defendant’s offer, made through his counsel, to support his children was limited to such amount, to be paid under such conditions and in such manner as met his fancy. That he supported the children prior to his separation does not refute the evidence that he was not supporting them adequately at the time of the hearing.
Under certain circumstances, trial courts have found it advantageous to order a defendant in a nonsupport action to pay not only to the benficiary but also to pay directly certain expenses of the beneficiary and to furnish certain goods in kind to the beneficiary.
In a nonsupport case, we do not interfere with the determination of the court below unless there is a clear abuse of discretion. Commonwealth ex rel. Volts v. Volts, supra. We find no clear abuse of discretion in the entry of the order in this case.
Order affirmed.