Appeal, No. 208, April T., 1959, from order of Court of Common Pleas of Allegheny County, Oct. T., 1958, No. 80, in case of Gertrude Scherer v. Jerome E. Scherer. Order modified.
William J. Graham, with him Harry Lazier, for appellant.
Gilbert E. Morcroft, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 451]
Plaintiff, Gertrude Scherer, commenced an action for divorce from bed and board on July 8, 1958. Subsequently a petition for alimony pendente lite and counsel fees and expenses was filed by the plaintiff-wife and, after hearing, the court, by order dated September
[ 191 Pa. Super. Page 45210]
, 1959, ordered the defendant to pay $200.00 toward counsel fees and to make payments upon the homestead owned by the entireties covering the mortgage, the taxes and the fire and public liability insurance, and, in addition to the foregoing, the defendant was ordered to pay to the plaintiff the sum of $50.00 per week for alimony pendente lite. The defendant appealed.
The parties were married on June 30, 1951 and the husband, during the entire period of the marriage until April 28, 1959, was employed by the Standard Auto Parts Company and received salary and bonuses of approximately $20,000.00 to $23,000.00 a year. They lived and entertained on a scale commensurate with the defendant's earnings. The home in which they lived cost $38,500.00 and at the time of the hearing was valued at approximately $45,000.00 to $50,000.00. The title was in both names as tenants by the entireties. Walter Burke, who owned Standard Auto Parts Company, died January 30, 1959 and the defendant was unable to buy the stock representing the controlling interest of that company at an Orphans' Court sale held April 28, 1959. Edward Burke, son of the owner, acquired the stock and because of a clash of personalities between Edward and the defendant, the defendant severed his relations with Standard Auto Parts Company. On June 1, 1959 the defendant started as president and manager of Standard Automotive Stores, Inc. This company was owned by C. E. McDermott of Akron, who put $25,000.00 into the business. The defendant received no income for May and June of 1959. On July 25, 1959 he received his first weekly pay of $100.00 a week, representing a take-home pay of $86.00 per week. The hearing in the present matter was held on August 11, 1959. In addition to his weekly pay the defendant receives approximately $340.00 a year as dividends on stocks. On August 1 he had a bank balance
[ 191 Pa. Super. Page 453]
of $1,970.38. He had had around $4,500.00 in the bank but living expenses had reduced it to the above amount. His new place of business is at Beaver Falls, where he rooms at a hotel. The company pays the daily rental of $5.00 for the room. It is also paying for his car and its upkeep. He usually spends his week-ends going home on Saturday night and staying home Saturday and sometimes Sunday in their joint property. The wife has continued to live in this property and the husband has been paying all expenses in connection with the running of the house.
We have examined the record carefully and do not believe that the defendant has any earning capacity or assets except those hereinbefore referred to. The defendant is now 55 years of age and testified that "There is no one in the industry who would hire me and pay me a salary because of the short time I have to work as a developer for them." He is really starting a new business on the capital of Mr. McDermott and because of his business experience he has hope of increasing his weekly earnings from $100.00 to $150.00 a week in another year or year and a half. He also has a tentative arrangement with Mr. McDermott that after the business has been established they will make some division of the stock. The business of selling auto parts in which he is engaged is a very competitive one and its future success has to be proved. This is not a case where a husband who has the capacity refuses to seek employment. On the contrary, the defendant felt, because of his age and other circumstances, that his best opportunity ...