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COMMONWEALTH EX REL. ROSS v. ROSS (09/16/65)

decided: September 16, 1965.

COMMONWEALTH EX REL. ROSS
v.
ROSS, APPELLANT



Appeal from order of County Court of Philadelphia, Dec. T., 1964, No. 5045, in case of Commonwealth ex rel. Clara Ross v. Stewart C. Ross.

COUNSEL

Lewis A. Walder, for appellant.

Harry C. Liebman, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 206 Pa. Super. Page 431]

This is an appeal from an order of the County Court of Philadelphia entered against appellant for the support of his wife in the amount of $25 a week.

Appellant first contends that his wife withdrew from the marital domicile without legal cause and, therefore, is not entitled to support. To receive support payments, a wife need not establish facts which would entitle her to a divorce; it is sufficient to justify living apart if she shows any adequate reason in law. Commonwealth ex rel. Darges v. Darges, 202 Pa. Superior Ct. 330, 332, 195 A.2d 847, 848 (1963); Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 326-327, 171 A.2d 833, 834 (1961). After reviewing the record, we find no reason to disturb the determination by the court below that the wife had sufficient legal cause to withdraw from the marital domicile.*fn1

The principal issue is whether the amount of the order was unreasonable and excessive. The husband is a retired radio technician, sixty-five years old, who receives Social Security payments in the amount of $102.70 a month, or $23.70 a week. The wife, who is sixty-eight years old, receives Social Security benefits in the amount of $51.10 a month, or $11.79 a week.

In addition to his Social Security benefits, the husband admitted that at the time of the separation, he had $17,500 in personal bank accounts. He testified, however, that three days after his wife left him, he gave all of these funds to his daughter, because she had once

[ 206 Pa. Super. Page 432]

    cared for him in the hospital. He also claimed that he had no control of or interest in the $17,500.

It is clear that the $25 support order of the lower court exceeds one-third of the husband's present income.*fn2 The lower court does correctly point out, however, that in fixing the amount of a support order, it is not restricted by the actual income of the husband, but may take into consideration his assets, earning capacity and other attendant circumstances.

In the instant case, the lower court determined that, ". . . the husband's earning capacity is greatly in excess of that reflected by his current net income. Until six or seven months prior to the separation the husband earned in excess of $100 per week. In the absence of any evidence to the contrary, the Court can infer that this is a proper measure of his earning capacity or power." The lower court then concluded: ". . . [A] husband ...


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