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COMMONWEALTH EX REL. SPITZER v. SPITZER (06/15/60)

June 15, 1960

COMMONWEALTH EX REL. SPITZER
v.
SPITZER, APPELLANT.



Appeal, No. 4, April T., 1960, from order of County Court of Allegheny County, No. 110 of 1958, in case of Commonwealth ex rel. Florence R. Spitzer v. Frederick I. Spitzer. Order affirmed.

COUNSEL

Allen N. Brunwasser, for appellant.

Thomas H. Cauley, for appellee.

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

Author: Woodside

[ 192 Pa. Super. Page 442]

OPINION BY WOODSIDE, J.

This is an appeal by the defendant from an order of the County Court of Allegheny County directing him to pay $50 per week for the support of his two children, Carol 8 and Danny 13.

[ 192 Pa. Super. Page 443]

The appellant contends that the court below was without authority to make an order in this case because (1) "The record is devoid of evidence as to defendant's earnings and earning ability, property, station and family circumstances at the time of the hearing;" (2) the father is voluntarily providing suitable maintenance; and (3) the court refused his request to permit him to support the children partly in cash and partly in goods. His main contentions are, therefore, that he is adequately supporting the children, but there is no evidence that he can adequately support them.

The children reside with their mother, who is a trained social worker employed by the Board of Education at a take-home salary of $379 per month for ten months a year. The parents separated in February 1958 and were divorced August 28, 1959.

The defendant, according to his brief, is self-employed. Arguing that an order will hamper and hinder him in his profession as a real estate broker, he hopes to avoid any order of support for his children by refusing to testify or give any information concerning his income or his estate.

Presumably, every able bodied man has earning capacity. The defendant was before the trial judge. If he were sick or crippled or aged, such fact would have been evident to the court. Through his counsel, defendant has indicated that he is a real estate broker, and that he intends to carry on that profession. Through his counsel, he has claimed his ability to pay $25 per week and for all clothing and doctor bills of the children. There is evidence that during the summer prior to the hearing the father voluntarily paid for camp for one of the ...


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