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COMMONWEALTH EX REL. ARENA v. ARENA (03/18/65)

decided: March 18, 1965.

COMMONWEALTH EX REL. ARENA
v.
ARENA, APPELLANT



Appeal from order of Court of Quarter Sessions of Montgomery County, June T., 1960, No. 318, in case of Commonwealth ex rel. Josephine Arena v. Joseph Arena.

COUNSEL

Jonathan De Young, for appellant.

Kingsley A. Jarvis, with him Leonard F. Markel, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 205 Pa. Super. Page 77]

This is an appeal from the order of the Court of Quarter Sessions of Montgomery County, dated April 28, 1964, increasing an order for support of defendant's three sons, aged 15, 13 and 12 years, from $36.00 per week to $48.00 per week and simultaneously dismissing defendant's petition for a decrease in the support order.

The original order, entered by agreement August 9, 1960, was for $30.00 per week, later increased on August 3, 1961 to $36.00 per week. At the hearing of April 28, 1964 relatrix testified that the expenses of the children increased and now averaged over $70.00 per week; that the boys were growing and eating more, and all their living expenses increased, including clothing. The boys were in the custody of the mother, with visitation rights in the father. They attend parochial school.

Appellant does not question the expenses of maintaining his children. Appellant contends that his financial condition is such that he cannot pay the increase of approximately $16.00 per month per child, but, in accordance with his petition for reduction, is entitled to a decrease in the order of $36.00 per week.

[ 205 Pa. Super. Page 78]

Appellant is employed by his brother as manager of the Powder Horn Inn and receives an average salary of $50.00 per week but has no proprietary interest in the business which, he contends, is losing money. Appellant takes his salary "as needed" out of the proceeds of the brother's business. He also receives a pension check of $66.00 per month, plus rents of $30.00 from a house and wages of $220.00 per month, making a total of $316.00 per month. Expenses of $395.00 per month are listed by appellant. Appellant admitted he could earn $85.00 per week elsewhere but stayed with his brother because the prospects for improving the business were good. It appeared that in the past he had made as much as $100.00 and $110.00 per week. In addition appellant admitted going out socially with a woman friend who drove a Lincoln Continental although he denied paying for the car.

Relatrix was employed in the Sheriff's office of Montgomery County. The court below knew the parties well and devoted much time in an effort to solve their problems and further the welfare of the children.

Relatrix had the burden of showing by competent evidence such change in conditions as would justify modification of the order for the support of the children: Com. ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 296, 101 A.2d 452. The rule that a support order should not exceed one-third of a husband's income is not applicable where support of children is involved: Com. ex rel. Iezzi v. Iezzi, 200 Pa. Superior Ct. 584, 190 A.2d 334.

The purpose of a support order is the welfare of the child and not punishment of the father. It must be fair and not confiscatory in amount, being intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father, and the condition and station in life of the family: ...


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