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MOORE v. MOORE (06/13/62)

June 13, 1962

MOORE
v.
MOORE, APPELLANT.



Appeal, No. 67, April T., 1962, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1958, No. 1948, in case of Elizabeth M. Moore v. Harry J. Moore. Order amended, and as amended, affirmed.

COUNSEL

J. R. Vlha, with him Henry Mustin, for appellant.

Carl Brandt, with him Brandt, Riester, Brandt & Malone, for appellee.

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

Author: Woodside

[ 198 Pa. Super. Page 351]

OPINION BY WOODSIDE, J.

Along with the granting of a bed and board divorce, the Court of Common Pleas of Allegheny County directed the defendant, Harry J. Moore, to pay alimony to Elizabeth M. Moore in the sum of $9000 per year in monthly payments of $750 each, and the balance of plaintiff's counsel fees in the sum of $3000. (Counsel previously received $1700). The defendant appealed from the order setting the amount of alimony and counsel fees. The divorce decree is not being contested before us.

The defendant had been engaged in the numbers business, a form of illegal lotery. When the parties lived together, the plaintiff helped her husband in the illegal business and had a fairly accurate idea of the income which was derived therefrom. After the parties separated, the defendant was arrested, and from the number of numbers found on him at that time, and from other information, his wife calculated his income to be $30,000 a year. The defendant introduced income tax returns for the last two years prior to the hearing. These returns, signed by both him and his wife, indicate that the parties together had an income of only about one-third of the wife's present estimate of the defendant's income.

The trial court is the finder of the facts. It could infer from all of the evidence that the defendant had been in the numbers business, that he had had an income of $30,000 per year obtained from this unlawful activity, and that in addition to his regular income he had access to substantial sums of cash for his personal use.

The trial court based its order upon a finding that the defendant had been engaged for many years in writing "numbers" and that he was still making daily collections of numbers slips along the route he had previously worked, and that his income therefore could be reasonably estimated at $30,000 a year.

[ 198 Pa. Super. Page 352]

An order for alimony relates to an obligation to be met in the future. Thus, it is clear that the court's order constitutes a division of anticipated income to be realized from expected future unlawful activity. It is against public policy to base a court order of support upon the assumption that the defendant wil violate the law in order to acquire the necessary funds to pay it. To base an order on anticipated unlawful conduct not only recognizes, but also encourages, a specific future violation of the law. It assumes law enforcement to be so impotent that it will allow the continuous and persistent violation of the law by a specific person in a specific manner, already known to the court. The court should not speculate upon a future income from a continuous and persistent career of vice and criminality and on the basis of this speculation order a division of the anticipated spoils of iniquity. King v. King, 79 Neb. 852, 113 N.W. 538 (1907); 139 A.L.R. 231.

The plaintiff argues that an order should be made on the basis of anticipated illegal income because federal income tax is imposed upon illegally obtained income. The analogy is not valid. The income tax is imposed upon the fruits of a crime already ...


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