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MCGEE v. MCGEE. (07/21/55)

July 21, 1955

MCGEE, APPELLANT,
v.
MCGEE.



Appeal, No. 74, Oct. T., 1955, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1952, No. 8244, in case of Annie F. McGee v. Joseph P. McGee. Judgment reversed.

COUNSEL

Leon Rosenfield, with him John Patrick Walsh, for appellant.

Frank Kingston Smith, with him Hamilton, Smith & Darmopray, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Gunther

[ 179 Pa. Super. Page 362]

OPINION BY GUNTHER, J.

This is an action in assumpsit to enforce a separation agreement which provided for the support of the plaintiff wife and three children. The court below, sitting without a jury, found that a reasonable sum for support would be $40 a week and entered an order against defendant husband for a total of$406. Wife has appealed on the ground that the order is inadequate.

[ 179 Pa. Super. Page 363]

The separation agreement provided that wife should be employed at husband's corporation at a salary of $150 a week, said salary to be in lieu of all support; in the event wife ceased working for this company, the amount of support was to be amicably agreed on by the parties or by two named attorneys; and the support was to continue after divorce and until wife's death or remarriage. Wife was discharged from her job on June 6, 1950. Two weeks later the parties were divorced. The wife received $150 a week from June 1950 until February 2, 1951, after which she received nothing until July 20, 1951. For the next year, until July 11, 1952, husband gave her $35 a week. From then until the complaint was filed he gave her $25 a week.

The parties being unable to agree on a fair sum for support after the wife's discharge, and the attorneys also failing to agree, this action was instituted, claiming $150 a week for the period June 6, 1950 to September 8, 1952. The court below, applying general support principles, found that $40 a week was fair and reasonable, and, after giving credit for amounts paid, arrived at the order of $406.

The testimony disclosed that at the time of the hearing there were three children aged 23, 20 and 12. The eldest attended college, the youngest was in school and the other was in the navy. The wife was employed during the period in question at a salary of from $50 to $70 a week. Husband's salary up to April 1950 was $25,800, of which he took only $15,000, the remainder staying with the corporation as a loan. The next two years his salary was $15,600. After April 1952 his salary was reduced to $7,800 per annum, so that his weekly take home pay at the time of the hearing was $119. Husband owned over 85% of the stock in the corporation, the wife holding the remainder except for

[ 179 Pa. Super. Page 364]

    one share. The corporate assets exceeded $80,000 in late 1952 and had generally increased over the prior two or three years. The corporation ...


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