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COMMONWEALTH v. MILLER (03/17/64)

March 17, 1964

COMMONWEALTH
v.
MILLER, APPELLANT.



Appeal, No. 312, Oct. T., 1963, from order of Court of Quarter Sessions of the Peace of Montgomery County, Nov. T., 1962, No. 300, in case of Commonwealth v. Stewart Miller. Order affirmed.

COUNSEL

Walter J. Collins, Jr., with him Desmond J. McTighe, David F. Maxwell, and Obermayer, Rebmann, Maxwell and Hippel, for appellant.

Elkins Wetherill, with him William L. O'Hey, Jr. and John F. Solomon, Jr., for appellee.

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

Author: Woodside

[ 202 Pa. Super. Page 575]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Quarter Sessions of Montgomery County made against a father for the support of his four sons, 10 to 16 years of age. The parents of the boys are separated but not divorced.

The mother and her four sons are living in a $34,000 house on which there is a mortgage of approximately $20,000, and the father is living in a house valued at between $55,000 and $60,000, on which there is a mortgage of an amount unknown to us. Title to both premises is in both parents. The defendant was ordered "to pay the weekly sum of $40.00 for each of his four sons, making a total of $160.00 per week." He was further

[ 202 Pa. Super. Page 576]

    directed to make the monthly payments on the mortgage, together with taxes and fire insurance on the house in which his wife and children are residing. He contends that the order is too high.

The defendant is a self-employed registered professional engineer who works as a business representative for several engineering companies and is paid a commission for negotiating contracts for them. From January 1, 1957 through 1962, he grossed from a low of $47,533 in 1962 to a high of $64,709 in 1957. In his 1962 federal income tax return, he took deductions for business expenses which brought the net profit of the business down to $22,722. The court below concluded that the defendant was currently earning after taxes between $18,000 and $20,000 a year, or between $350 and $400 per week. The mortgage payments, taxes and insurance on the house in which the boys and their mother reside appear to be approximately $2300 a year. An order of approximately $10,600 a year for the support of children would be too high for a defendant whose income would be only $18,000 a year after taxes. However, we must view the order here in the light of all the facts, and when we do so, we find that it must be affirmed.

The test here is not whether we would have made a similar order but whether the trial court is chargeable with an abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Superior Ct. 116, 118, 111 A.2d 157 (1955).

The trial court easily could have found the earning capacity of the defendant to be in excess of $20,000 a year after taxes. The defendant in testifying concerning his financial requirements indicated that in 1962 he had paid Internal Revenue "back additional taxes" for 1959, 1960 and 1961, from which it could be ...


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