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COMMONWEALTH EX REL. KOLBE v. KOLBE (06/11/58)

June 11, 1958

COMMONWEALTH EX REL. KOLBE
v.
KOLBE, APPELLANT.



Appeal, No. 206, Oct. T., 1958, from order of Municipal Court of Philadelphia (Domestic Relations Division), No. 201152, in case of Commonwealth of Pennsylvania ex rel. Barbara Kolbe v. Morton Kolbe. Order, as amended, affirmed.

COUNSEL

Alfred L. Luongo, with him Edwin P. Rome, and Blank, Rudenko & Klaus, for appellant.

Kenneth Syken, with him B. Nathaniel Richter, Charles A. Lord, and Richter, Lord and Levy, for appellee.

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

Author: Hirt

[ 186 Pa. Super. Page 257]

OPINION BY HIRT, J.

This was a proceeding brought by a wife for her support under § 733 of the Act of June 24, 1939, P.L. 872, 18 PS § 4733.

Within one year after the marriage in December 1956, the parties separated. During the time that they were living together the respondent struck his wife on a number of occasions and otherwise subjected her to

[ 186 Pa. Super. Page 258]

    physical abuse; and even after the separation she had him arrested for assault and battery because of a beating by him at their apartment where she had gone to get her personal belongings. He was guilty also of other mistreatment of her, which was unbecoming a husband. On this record she is not chargeable with misconduct and although she had reasonable cause, adequate in law for leaving him, it was he who left her. Clearly he is obliged to support her.

The lower court after full hearing made an order on the respondent requiring him to pay his wife $30 per week for her support. No child was born to them. The single question is whether the amount of the order is reasonable and proper under the circumstances.

The husband for three and one-half years had been a "junior" salesman in the employ of Benrus Watch Company. He testified that he worked wholly on commissions; that his gross income for 1956 had been $8,443 and that it was $8,330 for the year 1957 up to November 30th. The lower court, however, on its estimate of his credibility, believed that his earnings actually were higher. Under respondent's employment contract according to his testimony, he was obliged to absorb his traveling and other business expenses out of his earned commissions. He testified that his business expenses for 1956 amounted to a total of $7,903 leaving net earnings of only $539 or about $10 per week. He said that that amount appeared as a deduction in his federal income tax return for the year. His testimony that his expenses amounted to that sum, the equivalent of about $30 per day, is too fantastic for credence. As to that, also, ...


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