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April 18, 1963


Appeal, No. 432, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Sept. T., 1962, No. 3729, in case of Commonwealth ex rel. Frances S. Kallen v. Morris N. Kallen. Order affirmed.


Edward N. Barol, with him Leonard L. Creskoff, for appellant.

Harry Shapiro, with him David N. Bressler, and Shapiro, Rosenfield, Stalberg & Cook, for appellee.

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

Author: Montgomery

[ 200 Pa. Super. Page 508]


This is an appeal from an order entered by the lower court which granted $225 a week for the support of the appellant's wife and son. There was never any question in this case as to the right to support; the sole issue being the amount of support.

The parties were married on June 7, 1941, and have one child born May 10, 1947. They separated on June 10, 1962. The son lives with the wife in a two bedroom apartment and is a student. The appellant is a physician in general practice and is 61 years of age.

The appellant's testimony establishes that the gross receipts from his profession in 1961 were $36,338, and he also had $290 of income from other sources; his net income before taxes was $26,033.61, and his income after taxes was $20,660.26. The appellant acknowledged that the net worth of his assets was $324,750, although he claims that the major part of this is in speculative real estate which if liquidated at the present time would not bring this appraised valuation.

It is well settled that the purpose of a support order is to secure such an allowance to the wife and child as

[ 200 Pa. Super. Page 509]

    is reasonable, having in mind the husband's property and earning capacity and the station in life of the parties. Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa. Superior Ct. 115, 184 A.2d 291; Commonwealth ex rel. Warner v. Warner, 194 Pa. Superior Ct. 496, 168 A.2d 755. The husband's ability to pay or capacity to earn is an important criterion in the determination of the support order. Commonwealth ex rel. Mass v. Mass, 170 Pa. Superior Ct. 545, 87 A.2d 793. A wealthy father has a legal duty to give his children the advantages which his financial status indicates to be reasonable. Hecht v. Hecht, 189 Pa. Superior Ct. 276, 150 A.2d 139. The lower court, in consideration of these fundamental principles of law, reviewed the testimony of the appellant's finances and earning ability and concluded that the appellant is a person of means with a fairly substantial income who had been able to accumulate a personal estate of over a quarter-million dollars. The court was also of the opinion that the appellant's returns from his various business transactions and investments were substantially greater in amount than appellant disclosed. The lower court did not accept the itemized expenditures asserted by the appellee to be necessary for her and the son's support and which amounted to approximately $315 per week. After considering the credible evidence as to the appellant's finances and the standard of living to which the wife and son had been accustomed, the court entered an order for $225 per week for the support of the appellee and the son.

On an appeal by a husband challenging a support order, the function of the appellate court is to determine whether there is sufficient evidence to sustain the order of the hearing judge and the appellate court will not interfere unless there has been a clear abuse of discretion. Commonwealth ex rel. McCuff v. McCuff, 196 Pa. Superior Ct. 320, 175 A.2d 124; Commonwealth

[ 200 Pa. Super. Page 510]

    was accustomed. The court stated that it did not accept the itemized necessities of the wife at face value and also questioned the veracity of the appellant as to the disclosure of his entire income. The lower court has obviously made its own specific findings and deductions based on the evidence and accompanying circumstances, and the record fully substantiates its decision and order.


Order affirmed.


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