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COMMONWEALTH EX REL. HAMPTON v. DEVEAUX (12/28/56)

December 28, 1956

COMMONWEALTH EX REL. HAMPTON
v.
DEVEAUX, APPELLANT.



Appeal, No. 172, Oct. T., 1956, from order of Municipal Court of Philadelphia, Dec. T., 1955, No. 4743, in case of Commonwealth of Pennsylvania ex rel. Ohilda Hampton v. Joseph DeVeux. Order reversed.

COUNSEL

Henry N. Fineman, with him Morris Passon, for appellant.

F. Emmett Fitzpatrick, Assistant District Attorney, with him Thomas M. Reed, and Christopher F. Edley, Assistant District Attorneys, James N. Lafferty, Deputy District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Carr

[ 183 Pa. Super. Page 94]

OPINION BY CARR, J.

This case is somewhat unusual in that it involves an appeal from an order of the Municipal Court of Philadelphia, Domestic Relations Division, requiring a father to support his twenty-three year old married daughter. The question raised by the appellant is the reasonableness of the order of $10.00 per week. The record shows that the daughter together with her husband and three children are receiving public assistance in the total amount of $152.00 per month. Both the daughter and her husband testified that they were unable to work because of illness.

The father testified that he was working for the Pennsylvania Railroad earning $1.66 per hour and working forty hours per week. His net income according to him was approximately $100.00 to $105.00 each two-week pay period although his gross income would be $132.80 before deductions for railroad retirement and income tax. It further appears from the testimony that his wife has been ill for several years and that he has been required to borrow money to pay for her hospital and medical care. For this purpose he obtained two loans upon which he is paying $57.00 per month. In addition he is paying $23.26 per month for repairs made to the furnace in his home, $12.40 per month for roofing repairs and $9.23 per month for a fan, or total payments each month of $101.89 on account of monies borrowed. These expenses appear to be legitimate and

[ 183 Pa. Super. Page 95]

    ordinary living expenses. He owns his home purchased in 1944 for $4,500.00 upon which there is no mortgage. No estimate was given as to its present value.

In the case of Commonwealth v. Ritter, 12 Leh.L.J. 155 (1927), Judge RENO, later a member of this Court, had before him a case involving a petition for the increase in the amount of a support order for a wife and child against a husband whose income was approximately $39.00 per week. The defendant was a member of a partnership which owed $1,863.63 and he was indebted on his personal account about $2,500.00. Judge RENO said, "We have here stated a problem which has perplexed us for a long period. All domestic relations cases are difficult of solution, but we doubt whether a more intricate case has been before us. Beyond all doubt, the wife needs and deserves more. Unquestionably, the defendant's resources are limited and, in the nature of things, he cannot be forced to pay more than his earning capacity allows. We cannot stand over him with a lash and drive him to greater wages; and, if a greater burden is placed upon him than he can bear he will default in his payments; imprisonment for default of payments will produce nothing on which his wife and child can subsist. What to do? ... We must content ourselves with making such increase as will not unduly embarrass defendant and yet, if only to a small extent, relieve his wife and child. After all, a support order is always 'subject to revision as the financial ability of the party may make equitable': (Commonwealth v. Sherritt, 83 Pa. Super.Ct.R., 301) and to that extent is always, in its nature, temporary. Hence, upon a consideration of the whole case, conscious that this order will satisfy neither side but cherishing the hope that without unduly harming defendant it will appreciably alter the pitiable condition

[ 183 Pa. Super. Page 96]

    of the prosecutrix, we shall enter an ...


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