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COMMONWEALTH EX REL. O'HEY v. MCCURDY (09/13/62)

September 13, 1962

COMMONWEALTH EX REL. O'HEY
v.
MCCURDY, APPELLANT.



Appeal, No. 181, Oct. T., 1962, from oder of Court of Quarter Sessions of Montgomery County, Feb. T., 1961, No. 132, in case of Commonwealth ex rel. Anne C. O'Hey v. John G. McCurdy. Order affirmed.

COUNSEL

Thomas B. Moreland Porter, Jr., with him Foulke, Knight & Porter, for appellant.

William F. Fox, with him Fox, Differ, DiGiacomo & Lowe, for appellee.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Wright

[ 199 Pa. Super. Page 117]

OPINION BY WRIGHT, J.

This is an appeal by John G. McCurdy from an order of the Court of Quarter Sessions of Montgomery County requiring him to pay the basic sum of $195.00 per week for the support of his four minor children who are presently in the custody of appellant's former wife, Anne C. O'Hey. See Commonwealth ex rel. O'Hey v. McCurdy, 196 Pa. Superior Ct. 79, 173 A.2d 672; Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa. Superior Ct. 22, 184 A.2d 290.

The proceeding had its inception in a petition under the Act of September 26, 1951, P.L. 1494, amending Section 733 of The Penal Code, 18 P.S. 4733. This petition was filed by Anne C. O'Hey and joined in by John G. McCurdy. The court below thereupon directed a preliminary conference before the probation officer, which conference did not result in any agreement. The latter was eventually heard by Judge HONEYMAN, and the order from which the instant appeal has been taken was entered on February 16, 1962. This order provides

[ 199 Pa. Super. Page 118]

    for a weekly payment of $195.00, plus a temporary additional sum of $15.00 per week to cover the tuition and school expenses of the youngest child. For the weeks during which appellant has the children with him, pursuant to his visitation rights, the amount payable under the support order is reduced to $55.00. The facts are summarized in the opinion below as follows:

"The defendant, Mr. McCurdy, has a total separate estate well in excess of $650,000.00. His admitted income after Federal Income Taxes in 1960 was $23,575.80, and in 1961 was $22,142.27. In 1960 his gross income included an item of salary of $6,878.00 and in 1961 $7,436.00. It would seem rather obvious to the Court that the financial statements he submitted in evidence either do not fully reflect all of his income by way of investment or else the principal of his separate estate is poorly invested or some of the money is nonproductive. $650,000.00 would earn at a rate of 4% gross investment income of $26,000.00 per annum as opposed to investment income which he listed in 1961 at $19,925.72. A Court is not limited to considering a defendant's admitted income but may also consider the extent of the principal of the defendant's separate estate. Therefore this Court finds that the defendant has an earning capacity in excess of that which he admits in the testimony and has the ability to pay support greater than that which he asserts he has.

"The four minor subjects of this proceeding also have separate estates consisting of funds in guardians' accounts, in accounts created under Deeds of Trust, as well as tentative Trust Accounts in a savings bank. The principal of John G. McCurdy, Jr.'s separate estate totals $60,968.00; the principal of Anne C. McCurdy's separate estate totals $53,975.00; the principal of Edward G. McCurdy's separate estate totals ...


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