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COMMONWEALTH EX REL. LONG v. LONG. (04/11/56)

April 11, 1956

COMMONWEALTH EX REL. LONG, APPELLANT,
v.
LONG.



Appeal, No. 296, Oct. T., 1955, from decree of Court of Quarter Sessions of Lycoming County, Dec. T., 1946, No. 24, in case of Commonwealth ex rel. Frances Long v. W. R. Long. Decree affirmed.

COUNSEL

P.H. Fierro, for appellant.

O. Wm. Vanderlin, with him McNerney, Page & Vanderlin, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 181 Pa. Super. Page 42]

OPINION BY ERVIN, J.

On April 12, 1947 the appellee was ordered to pay the sum of $10.00 a week for the support of his wife by President Judge D. M. LARRABEE. On April 23, 1951 the order was increased to $25.00 a week by the same Judge. On June 13, 1955, after hearing, this order was reduced to $7.00 a week by President Judge C. S. WILLIAMS. We take judicial notice of the retirement of Judge LARRABEE prior to the time of the last hearing and order. The wife appealed and the only

[ 181 Pa. Super. Page 43]

    question for our present determination is whether there was a clear abuse of discretion by the lower court. Com. ex rel. Thompson v. Thompson, 171 Pa. Superior Ct. 49, 54, 90 A.2d 360.

In Com. ex rel. Rankin v. Rankin, 170 Pa. Superior Ct. 570, 572, 87 A.2d 799, this Court, speaking through Judge HIRT, said: "The function of a court in a proceeding for support, such as this, under § 733 of The Penal Code of June 24, 1939, P.L. 872, 18 PS § 4733, is not to punish a husband for his misconduct but to fix an amount which is 'reasonable and proper for the comfortable support and maintenance of ... [his] wife ...' There is a limitation by law on the maximum amount of such support order, when children are not involved, in the rule that the award may not exceed one-third of the husband's income. Com. ex rel. Milne v. Milne, 150 Pa. Superior Ct. 606, 29 A.2d 228. But in determining the appropriate amount of the order the court is not restricted to the husband's actual earnings, but may also consider his earning power (McMahon v. McMahon, 167 Pa. Superior Ct. 51, 74 A.2d 718; Commonwealth v. Gleason, 166 Pa. Superior Ct. 506, 72 A.2d 595) and the nature and the extent of his property and other financial resources. Commonwealth v. Surovitz, 148 Pa. Superior Ct. 342, 25 A.2d 761." See also Com. ex rel. Glener v. Glener, 173 Pa. Superior Ct. 108, 110, 94 A.2d 102.

A subsequent petition to vacate an order of support is not a substitute for an appeal, and cannot bring up for review the court's discretion in making the first order. Com. ex rel. Skulsky v. Skulsky, 168 Pa. Superior Ct. 635, 637, 82 A.2d 312.

After the original unappealed from order has been made it may be reduced only upon a showing made in good faith that the circumstances existing when the prior order ...


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