Appeals, Nos. 270 and 291, Oct. T., 1955, from orders of Municipal Court of Philadelphia County, No. 191365, in case of Commonwealth ex rel. Harry Goldman v. Arnold Goldman and Audrey Moskowitz. Orders reversed.
Leonard Levin, with him Levin, Levin & Levin, for appellant.
D. Freeman, with him Leonard J. DeNote, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, and Ervin, JJ. (woodside, J., absent).
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Audrey Moskowitz here appeals from two orders in proceedings for the support of her father. Number 270 is from the initial order for support and number 291 is from the order of enforcement entered after her failure to comply with the order for payment. Arnold Goldman, appellant's brother, was also involved in these proceedings, but he chose not to appeal.
The proceeding for support was brought under the Act of June 24, 1937, P.L. 2045, Sec. 3, as amended by the Act of May 23, 1945, P.L. 864, Sec. 1 etc., 62 P.S. Pocket Suppl. sec. 1973, which provides in part as follows: "(a) The husband, wife, child, father and mother of every indigent person, whether a public charge or not, shall, if of sufficient financial ability, care for and maintain, or financially assist, such indigent person at such rate as the court of the county, where such indigent person resides shall order or direct." After hearing, the court entered an order against the appellant for $3. a week.
The only real issue here is whether the appellant is "of sufficient financial ability" to contribute toward the support of her father within the meaning of the Act. The other question raised, whether the father is "indigent" is without merit, for the record amply indicates that he is. See our discussion of "indigent" in Commonwealth ex rel. Home for the Jewish Aged v. Kotzker, 179 Pa. Superior Ct. 521, 118 A.2d 271. Harry Goldman, appellant's father, is in substantially the same financial situation as the elder Kotzkers were in that case.
According to the testimony the appellant is married to an engineer who earns $7,500. a year. They have a three year old child for whom she cares in addition to keeping house for her husband. She does not work anywhere, nor does it appear that she is able to
[ 180 Pa. Super. Page 340]
accept employment, and she has no separate property. Her husband furnishes her with money for household expenses but has forbidden her to use any of this money for her father's support. In an admitted effort to prevent her from so using any of the household expense money, the husband has placed her on a day to day budget, limiting the amount to that required for the basic necessities. He pays all other bills himself.
There is nothing in our law requiring appellant's husband, the son-in-law, to contribute toward the support of his wife's father. The issue then is whether the appellant, who performs her husband's housework, raises his child, and depends upon him for her own support, without a separate estate of her own, has "sufficient financial ability" to assist her father. We think not. Any order against her naturally requires that she obtain the funds necessary to comply therewith from some source. She has to have the ability to pay. Stoner Estate, 358 Pa. 252, 258, 56 A.2d 250. She has only one source of income, her husband. Generally, the test for financial ability includes a consideration of the actual income, the property, assets and earning ability, as well as other attendant circumstances. Davidsen v. Davidsen, 175 Pa. Superior Ct. 123, 128, 103 A.2d 296, Commonwealth ex rel. Schoenfeldt v. Schoenfeldt, 149 Pa. Superior Ct. 455, 457, 27 A.2d 472, 473. The attendant circumstances here indicate that appellant has been virtually pauperized by her husband to prevent her complying with the support order, a situation certainly not in the best interests of marital ...