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KELLER v. KELLER (06/15/60)

June 15, 1960

KELLER
v.
KELLER, APPELLANT.



Appeal, No. 48, April T., 1960, from order of Court of Common Pleas of Allegheny County, Jan. T., 1960, No. 745, in case of Mary F. Keller v. Earl M. Keller. Order affirmed.

COUNSEL

Ruth F. Cooper, with her Dane Critchfield, for appellant.

John B. Nicklas, Jr., with him McCrady & Nicklas, for appellee.

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

Author: Watkins

[ 192 Pa. Super. Page 604]

OPINION BY WATKINS, J.

This is an appeal from the order of the court below in fixing the monthly payment of alimony pendente lite in the sum of $703.48 per month, which payment consists of the following: Five Hundred ( $500) Dollars per month in cash to the appellee-wife, Mary F. Keller; the sum of $168.48 per month on the mortgage on the home now occupied by her and owned by Earl M. Keller, the appellant, and the appellee, as tenants by the entireties, plus the bills for gas, water and electricity consumed in the said home, which approximates $35 per month.

The parties were married December 31, 1934, and lived and cohabitated together until April 13, 1959, when the husband left the wife. There was one son born of this marriage, now of age, who is married and lives in his own home and works for his father, the husband, at the Keller-Irwin Laboratories, Inc. in Johnstown, Pennsylvania. The wife continues to reside alone in the family residence at 2816 Bethel Church Road, Bethel Park, Allegheny County, Pennsylvania. The evidence shows that for the year 1958 and for several years preceding that time, the husband had a total income of $34,200 per year, which he received as salaries, dividends and bonuses from three companies in which he had an interest. In addition to this

[ 192 Pa. Super. Page 605]

    income, he was paid traveling expenses for travel and money expended while on the road, for these companies.

Effective January 1, 1959, the husband disposed of his interests in the Beitler-McKee Optical Co., of Pittsburgh, and the United States Optical Laboratories, of Cleveland, Ohio, in exchange for the entire control of the Beitler-McKee Laboratories, of Johnstown, Pennsylvania, now the Keller-Irwin Laboratories, Inc. In organizing the Keller-Irwin Laboratories some 45 shares of stock were distributed to other shareholders who had some minor interest in this business and the husband retained almost absolute control of this business. The salary to be paid to him was decided by the Board of Directors of this new company to be $15,000 a year plus an expense account. However, this salary would not be indicative of the actual earnings of the husband since there is no record of the earning potential of this company or its business experience up to the time of the hearing.

In addition to this salary he will receive for a two-year period the sum of $3000 per annum, as a consulting fee from the other companies from which he withdrew. The record indicates that he will also receive other monies over a period of years from the two companies from which he withdrew. However, other than interest paid on the sums withheld, this would represent a return of capital rather than income. However, as was indicated on the record by the attorney for the husband, after his withdrawal from these companies, he was left in the same position as he was in previously, less monies representing capital gain, which were paid out for tax purposes. So that the income of the husband over the prior years is the ...


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