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COMMONWEALTH EX REL. FINN v. FINN (06/13/62)

June 13, 1962

COMMONWEALTH EX REL. FINN
v.
FINN, APPELLANT.



Appeal, No. 7, Oct. T., 1962, from order of County Court of Philadelphia, Oct. T., 1961, No. 4633, in case of Commonwealth ex rel. Elaine G. Finn v. Jerome A. Finn. Order reduced and, as reduced, affirmed.

COUNSEL

David N. Bressler, with him Shapiro, Rosenfield, Stalberg & Cook, for appellant.

Wilbur Greenberg, with him Miller, Pincus and Greenberg, for appellee.

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

Author: Woodside

[ 198 Pa. Super. Page 334]

OPINION BY WOODSIDE, J.

The only question in this appeal is whether the court below abused its discretion in ordering the defendant to pay $125 per week for the support of his wife and two young adopted children.

[ 198 Pa. Super. Page 335]

The parties, who are in their late thirties, separated by agreement May 14, 1961, after approximately five years of married life. The children were 3 and 2 years of age at the time of the hearing.

The defendant is an equal partner with his mother in a retail men's clothing business in Philadelphia, which grossed over $350,000 per year before the recent opening of a second store. Prior to their separation, the defendant gave his wife $145 per week out of which she paid the household expenses, including a $65 monthly installment on a car and $26 monthly insurance premiums on her husband's life. Most of her clothing were purchased by the defendant, and the family's Blue Cross and Blue Shield were carried by the business.

When the parties separated, the defendant paid his wife $125 per week which he subsequently reduced to $50 per week. The reduction provoked this action which resulted in an order of $125 per week, from which the defendant appealed.

The defendant contends that he reduced the payment to his wife because his income was limited to $125 per week by an agreement with the Small Business Administration as the result of a loan made to the partnership. His wife says he reduced her allowance to force her to make a property settlement and give him a divorce. She argues that even if he is limited to a salary of $125 per week, he is using a new Oldsmobile being purchased by the partnership and has an expense account which has grown from $657 in 1958 to $3900 in 1960 and that the business is making a profit of $4800 a year, half of which is income to her husband.

There are many factors to be taken into acount in fixing an order of support. The applicable principles of law have been too frequently stated by this Court to bear further repetition. However, we cannot overlook a new principle applied by the court below ...


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