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COMMONWEALTH EX REL. WARNER v. WARNER (03/22/61)

March 22, 1961

COMMONWEALTH EX REL. WARNER
v.
WARNER, APPELLANT.



Appeal, No. 443, Oct. T., 1960, from order of Court of Quarter Sessions of Delaware County, Sept. T., 1959, No. F-5-123, in case of Commonwealth ex rel. Isabel Durkee Warner v. Miles Warner. Order, as modified, affirmed.

COUNSEL

William A. Welsh, for appellant.

J. Harold Hughes, Assistant District Attorney, with him Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

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

Author: Wright

[ 194 Pa. Super. Page 497]

OPINION BY WRIGHT, J.

This is an appeal by Miles Warner from an order of the Court of Quarter Sessions of Delaware County requiring him to pay the sum of $80.00 per week, "together with all sums which may be paid or incurred by relator for necessary medical care and attention", for the support of his three minor children, Robert, Sally, and Thomas, aged at the time of hearing, ten, eight, and six years respectively. The children are in the custody of their mother, Isabel Durkee Warner.

[ 194 Pa. Super. Page 498]

The parties were married on September 18, 1948. A final decree in divorce was entered on November 30, 1959. Appellant has since remarried. Appellee resides in the home formerly owned by both parties and retained by appellee as a result of the property settlement. Appellant resides in a new house recently constructed at a total cost of $42,000.00, all but $5,000.00 of which amount was advanced by his father. The $5,000.00 supplied by appellant was received by him from the property settlement. Appellant is a member of the Philadelphia Bar and holds the position of assistant counsel to the Pennsylvania Public Utility Commission, in which occupation he spends a minimum of three days a week. The remainder of his time is devoted to private practice in the City of Philadelphia, where he has office space with a firm of attorneys, for which he pays a portion of his fees.

Three hearings were held. The first, September 11, 1959, occurred during the pendency of the divorce proceeding. Appellant offered no testimony, and no formal order was entered. Instead, it was agreed that appellant should pay the sum of $75.00 per week. Although the docket entry discloses that this amount was "for support of wife and three children", appellee here asserts that "this is absolutely and undoubtedly incorrect and was for the three children only". It is worthy of note that, in the colloquy preceding this agreement, the hearing judge commented on the amount in the following language: "And I am saying that to get over the hump of the divorce I am making it a little high, I will have to admit. Under ordinary circumstances I wouldn't make it $75.00 for three children under these circumstances".

A second hearing was held on January 29, 1960. At that time appellee testified that she needed $75.00 a week to support the children. Appellant testified that the "greater part by far" of his income was earned in

[ 194 Pa. Super. Page 499]

    his position as assistant counsel to the Public Utility Commission, and that his gross income from private law practice in 1959 was $2,000.00. In connection with appellee's request for $75.00 per week, the hearing judge stated: "I would say right now that $75.00 a week based on this man's earning ability is too much for three children". And later: "I know, but this man is not a millionaire, he does not have a practice or a position in life ...


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