Opinion
September 17, 1970.
November 13, 1970.
Husband and Wife — Parent and Child — Support — Evidence — Purpose of order.
1. The purpose of the support laws is not to punish a husband for his dereliction in failing to support his family; it is rather to secure such allowance for the family's support as is reasonable, having in view his ability to pay as evidenced by his property, income, and earning capacity.
2. An order of support for a wife and children must be justified by the evidence, and must be commensurate with the means and station in life of defendant.
3. In this support proceeding, no formal testimony was presented at the time of hearing, but counsel for defendant indicated that the husband, a bartender, had a gross income of $90 per week, with a net of $73, plus tips of $5 per week. The court below entered an order of $70 per week. There was no evidence to show that defendant had another source of income or that the informal stipulation as to tips was inaccurate. Defendant had a high school education, but nothing indicated that defendant had or could obtain a higher-paying job merely on the basis of his high school education.
It was Held that without some testimony or evidence as to defendant's potential earning power or extra income the court had no foundation on which to base its order in the amount of $70.
In the circumstances, it was Held that an order of $45 per week for the support and maintenance of the wife and two minor children was justified by the evidence.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 1394, Oct. T., 1970, from order of Court of Common Pleas of Delaware County, Sept. T., 1970, No. F-16-31, in case of Commonwealth ex rel. Eileen Steacker v. John Steacker. Order affirmed as modified.
Nonsupport. Before CATANIA, J.
Order entered in the amount of $70 per week for support of relatrix, wife, and two minor children. Defendant, husband, appealed.
Edward A. Savastio, with him Savastio, Levin Sereni, for appellant.
No oral argument was made nor brief submitted for appellee.
Argued September 17, 1970.
Relatrix petitioned the court below for an order of support for herself and her two children. No formal testimony was presented at the time of hearing, but counsel for appellant indicated that the husband, a bartender, had a gross income of $90 per week, with a net of $73, plus tips of $5 per week. The court entered an order of $70 per week. A petition for rehearing and testimony on the merits was denied, and this appeal followed.
The court below based its decision on the "feeling that [appellant] made a great deal more in tips, plus the fact that since he had the equivalent of a high school education, his potential was far greater than the amount he claimed to have been earning." Since no formal testimony was presented by the parties, these conclusions could only have been based on speculation and unsubstantiated hypotheses. There was no evidence to show that appellant had another source of income or that the informal stipulation as to tips was inaccurate. Nothing indicates that appellant had or could obtain a higher-paying job merely on the basis of his high-school education. Clearly, "[i]n the absence of evidence of ability to pay, orders of support could be highly over-estimated . . . and bring about serious economic hardship to one of the parties." Commonwealth ex rel. Tizer v. Tizer, 214 Pa. Super. 444, 449, 257 A.2d 683, 685-686 (1969). Without some testimony or evidence as to appellant's potential earning power or extra income, the court had no foundation on which to base its conclusion that $70 per week would not be confiscatory and cause serious hardship.
"The purpose of the support laws is not to punish a husband for his dereliction in failing to support his family; it is rather to secure such allowance for the family's support as is reasonable, having in view his ability to pay as evidenced by his property, income and earning capacity." Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Super. 541, 185 A.2d 822, 824 (1962). The court "is not restricted to the husband's actual earnings, but may also consider his earning power and standard of living. . . ." Commonwealth ex rel. Kallen v. Kallen, 200 Pa. Super. 507, 510, 190 A.2d 175, 176 (1963).
Under the circumstances of this case, we are of the opinion that an order of $45 per week for the support and maintenance of the wife and two minor children is justified by the evidence, yet is commensurate with the means and station in life of appellant. Cf. Commonwealth ex rel. Wible v. Wible, 200 Pa. Super. 182, 189 A.2d 598 (1963) (take home pay of $82 per week plus gifts from father justified support order of $45 per week for wife and two children).
Accordingly, the order for support of wife and two children is reduced from $70 per week to $45 per week and as modified is affirmed.