89 Pa. Super. 566 | Pa. Super. Ct. | 1926
Argued December 8, 1926.
The amount to be allowed a wife, respondent in divorce, for her support pendente lite and counsel fees is largely in the discretion of the Court of Common Pleas, subject to the condition that the allowance for support should not substantially exceed one-third of the income from the property and labor of the husband: Lynn v. Lynn,
In the present case the court below ordered the libellant to pay his wife a counsel fee of $250 and $50 per month allowance for support. It was shown that he received a salary of $4000 a year and gross rentals of $3060 annually from real estate held by the parties as tenants by entireties. It was undisputed that she possessed a piano and considerable jewelry and owned two pieces of real estate in the City of Chicago, one of which produced a net income of about $900 a year, and the other of which was, and had been for some time prior to her marriage, occupied as a dwelling by her near relatives, free of rent. We have no doubt the court below took into consideration her separate estate in fixing the amounts to be paid by libellant as above; otherwise the amount awarded for her support would probably have been larger. We need not go more fully into the details of their respective incomes and estates, for we are of opinion that the income from the estate held by entireties alone justifies the order, or at least is such as to disprove any clear abuse of discretion by the lower court. Appellant's gross income from this source was $3060. The expenses paid by him for about nine months in the current year amounted to $1742; but this sum included taxes, water rent and interest for the entire year. We think it fair to assume that the net annual income from this source is between $1000 and $1200. By the Act of May 13, 1925, P.L. 649, in case libellant is granted a divorce the property thus held by entireties may at the suit of either party be ordered sold and the proceeds divided equally between them. And by the decision of the Supreme Court in O'Malley v. O'Malley,
The order, however, must be modified in so far as it directs the allowance for support to be calculated from the inception of the writ. It should not relate back beyond the date of the filing of the petition for such allowance, to-wit, August 10, 1925. As thus modified, it is affirmed at the costs of the appellant.