Opinion
May 5, 1941.
June 30, 1941.
Husband and wife — Support — Vacation or modification of order — Change of financial condition or other circumstances — Evidence — Burden of proof — Ability of husband to pay.
1. Orders in non-support cases are not regarded as final, inasmuch as they may be increased, reduced, or vacated where the financial condition of the parties changes, or where other proper reasons are shown.
2. The burden is upon the husband who seeks to reduce or vacate a support order to show, by competent evidence, such changes in conditions or circumstances as would justify such action.
3. These changes must be permanent; temporary losses are insufficient.
4. An averment by the husband that he has no income, standing by itself, is not entitled to weight.
5. The trial court, in passing upon the facts, is not compelled to accept as verity the statements of the defendant but may make its own deductions from the evidence and accompanying circumstances.
6. The testimony of the defendant need not be accepted by the court where it is not convinced of his good faith.
7. In considering the sufficient ability of the husband to pay, not only the actual amount shown to have been received, but also the attendant circumstances, must be considered.
Judgments — Conclusiveness — Order of support — Duty to provide support for wife.
8. Where an order of support is not appealed from by the husband, it must be assumed that the wife is entitled to support and that it is the duty of the husband to provide it.
Appeals — Review — Order for support of wife — Discretion of court below.
9. In support cases, the appellate court will not interfere with the determination of the court below unless there is a clear abuse of discretion.
Corporations — Entity — Disregarding corporate fiction — Support case.
10. The fiction of a corporation will not be permitted to hide the individual behind it and prejudice the right of an innocent party.
Appeal, No. 18, March T., 1941, from order of Q.S. York Co., June T., 1940, No. 5, in case of Commonwealth ex rel. Helen Catherine Crandall v. George E. Crandall.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. Order affirmed.
Petition to vacate support order. Before ANDERSON, J.
The facts are stated in the opinion of the Superior Court.
Petition refused. Defendant, petitioner, appealed.
Error assigned, among others, was refusal of petition.
H. Eugene Gardner, for appellant.
Spencer R. Liverant, for appellee.
Argued May 5, 1941.
This is an appeal by George E. Crandall from an order of the court below dismissing his petition to vacate a support order which directed that he pay his wife Helen Catherine Crandall $12.50 per week.
The original order was made on July 15, 1940. No appeal was taken from that order. On October 2, 1940, appellant filed his petition to vacate the support order, setting forth, as to change in circumstances occurring since the entry of the order, that he no longer had a net income from Dr. Crandall's Health School, a corporation. After hearing, the petition was dismissed. This appeal followed.
Orders in nonsupport cases are not regarded as final, in as much as they may be increased, reduced, or vacated where the financial condition of the parties changes, or where other proper reasons are shown. Com. ex rel. Barnes v. Barnes, 140 Pa. Super. 397, 399, 14 A.2d 164. See, also, Act of June 19, 1939, P.L. 440, No. 250, § 1, 17 Pa.C.S.A. § 263. But the burden rested upon appellant to show, by competent evidence, such changes in conditions or circumstances as would justify a vacation or modification of the original order of July 15, 1940. Com. ex rel. Snyder v. Snyder, 120 Pa. Super. 189, 192, 182 A. 62; Com. ex rel. Ritter v. Ritter, 91 Pa. Super. 563, 566. These changes must be permanent; temporary losses are insufficient. Com. ex rel. Berardino v. Berardino, 99 Pa. Super. 532, 534.
"Any order heretofore or hereafter made by any court of this Commonwealth for the support of a wife, child or parent, may be altered, repealed, suspended, increased, or amended, and the said court may, at any time, remit, correct or reduce the amount of any arrearages, as the case may warrant."
The record of the second hearing does not disclose any valid basis for a revocation of the original order. According to appellant's testimony he is a physician (see Commonwealth v. Crandall, 145 Pa. Super. 353, 21 A.2d 232), and is entitled to receive a salary of $2,000 annually from an institution known as Dr. Crandall's Health School, a closed corporation, plus expenses. The corporation owns considerable real estate. He states that since July 15, 1940, the date of the original order, he has not received any salary because the corporation is unable to pay it. Appellant is president, and owner of at least 51 per cent of the stock, of that institution. He refused to state how much of the remaining stock he controlled. He and his son are two of the three directors, the third being associated with him, and there has been no meeting of the stockholders for many years. Since 1927 he has been the sole signer of all corporate checks. Testimony was offered relating to the income of the corporation from patients, but appellant stated that he did not know the income of the corporation from stocks, bonds, or other security holdings. He refused to divulge what other assets the corporation owned, or what his individual investments were, although admitting some. He cannot be heard to say that a corporation so controlled cannot pay his salary when he makes no full disclosure of the facts. His averment that he has no income, standing by itself, amounts to nothing. Com. ex rel. Berardino v. Berardino, supra, p. 536. In Com. v. Knobloch, 89 Pa. Super. 216, at page 218, this court said: "We can easily imagine that a man of large means could so adjust his finances . . . . . . and so regulate his investments that a very small net income might result." Appellant avoided disclosing his income or earning capacity, and obviously this he cannot do for the purpose of evading payment of a support order. The court must be convinced of appellant's good faith (Com. ex rel. Berardino v. Berardino, supra, p. 534), an element lacking in this case. By his attitude he gave the impression that he was concealing the facts; there was an entire absence of candor.
The testimony in relation to the disbursements of the corporation since the original order failed to show with certainty what expenses of appellant were treated as personal, and debited against his salary, and what expenses were corporate. It paid, however, as corporate expenses, his lodge dues, room and board, payments on the original order of support heretofore made to his wife, and his attorney's fees.
In considering the sufficient ability of the husband to pay, not only the actual amount shown to have been received, but also the attendant circumstances, must be considered. Com. ex rel. Liuzzi v. Liuzzi, 142 Pa. Super. 239, 241, 15 A.2d 738; Com. ex rel. Stout v. Stout, 142 Pa. Super. 449, 451, 16 A.2d 723. The court below, in passing upon the facts, was not compelled to accept as verity the statements of appellant, but could make its own deductions from the evidence and accompanying circumstances. Com. ex rel. Elgart v. Elgart, 137 Pa. Super. 418, 420, 9 A.2d 202; Com. v. Gensemer, 122 Pa. Super. 456, 458, 185 A. 867.
As in the present case, the fiction of a corporation will not be permitted to hide the individual behind it, and prejudice the rights of an innocent party. See Kulka v. Nemirovsky et al., 321 Pa. 234, 237, 182 A. 692.
Complaint is also made by appellant that his wife refuses to live at the institution with him where he can secure maintenance for her. He took no appeal from the original order, and it must therefore be assumed that the wife was entitled to support, and that it was the duty of appellant to provide it. Com. v. Gensemer, supra, p. 457; Com. ex rel. Isaacs v. Isaacs, 124 Pa. Super. 450, 454, 188 A. 551. Further, appellant's statements that there is provision for her at the institution if she should see fit to come back, and that he is not doing anything to keep her away, are unsatisfactory. If anything, it shows that appellant is capable of supporting his wife. Cf. Com. v. Shankel, 144 Pa. Super. 476, 19 A.2d 493.
In a case of this nature we do not interfere with the determination of the court below unless there is a clear abuse of discretion. Com. ex rel. v. Betts, 76 Pa. Super. 96, 98; Com. v. Spadine, 120 Pa. Super. 77, 79, 196 A. 898; Com. ex rel. Elgart v. Elgart, supra, p. 420. In the dismissal of appellant's petition to vacate the order of July 15, 1940, we find none.
The order is affirmed.