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COMMONWEALTH EX REL. LITZ v. LITZ (09/16/59)

September 16, 1959

COMMONWEALTH EX REL. LITZ
v.
LITZ, APPELLANT.



Appeals, Nos. 125 and 126, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Aug., 1956, No. 3496 (Domestic Relations Division No. 176787), in case of Commonwealth ex rel. Claire Litz v. Milton Litz. Order affirmed.

COUNSEL

Peter P. Zion, for appellant.

Abraham Levin, for appellee.

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

Author: Hirt

[ 190 Pa. Super. Page 311]

OPINION BY HIRT, J.

The original order in this case requiring the respondent to pay $40 per week for the support of his

[ 190 Pa. Super. Page 312]

    wife and their 8-year old daughter was entered on August 30, 1956. Since that time there have been numerous petitions for reduction in the amount of the order, and with some success; on November 9, 1956 there was a reduction (for reasons which to us are not entirely convincing) to $34 per week. Since then the defendant has defaulted in his payments on the order for one week out of almost every month, and at the time of the final order with which we are concerned, the amount in arrears was $1,095. In our view the 319 pages of the original record in this case indicates an imposition on the patience of a busy court to which it was not obliged to submit. In the order of October 29, 1958 from which this appeal was taken, the last of a series of petitions for a reduction in the amount of the order was dismissed, and the respondent was ordered to pay the amount in arrears "not later than November 17, 1958 or [to undergo imprisonment for] six months in County Prison."

The liability of the respondent for the support of his wife and his child is not open to question. She was justified in leaving him and the wife's earnings of $35 per week as a saleswoman does not relieve him from the obligation of support as to her. Com. ex rel. Shotz v. Shotz, 130 Pa. Superior Ct. 561, 198 A. 472.

Respondent is about 43 years old. His formal education ended with two years in college but he is ablebodied and normally intelligent, and in our view has earning power far in excess of the $75 per week which he contends is the total gross amount of his earnings. The lower court did not believe him, nor do we. He can, if he will, make good his arrearages and keep his weekly payments up to date under the current order. Cf. Com. ex rel. Weible v. Weible, 159 Pa. Superior Ct. 290, 48 A.2d 161. In determining what one should pay for support of his wife and children the court may consider his earning power and is not restricted to the amount

[ 190 Pa. Super. Page 313]

    of income which he admits, even though it may represent his actual total earnings. Commonwealth v. Gleason, 166 Pa. Superior Ct. 506, 72 A.2d 595. The nature and extent of his property and financial resources other than his wages or salary may also be considered. ...


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