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COMMONWEALTH EX REL. LIPSKY v. LIPSKY (03/20/69)

decided: March 20, 1969.

COMMONWEALTH EX REL. LIPSKY
v.
LIPSKY, APPELLANT



Appeal from order of County Court of Philadelphia, Dec. T., 1966, No. 4496, in case of Commonwealth ex rel. Barbara Lipsky v. Philip Lipsky.

COUNSEL

Samuel S. Blank, with him John S. Manos, for appellant.

Maurice J. Friedman, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 214 Pa. Super. Page 216]

Appellant-husband has appealed from an order providing for the support of his wife in the amount of $135 per week, and his child in the amount of $35 per week, or a total of $170 for both. Appellant contends

[ 214 Pa. Super. Page 217]

    that $135 per week for the wife is excessive and that the order should not have been made retroactive. It was originally entered on December 26, 1967 without the retroactive provision, but on December 29, 1967 by an amended order, it was made retroactive to January 18, 1967 with the following notation, "See notes of testimony, page 17, of January 18, 1967, 'and if an order is to be made it will be made retroactive to today.'" Appellant does not question the reasonableness of the order for the child.

Hon. Edward A. Kallick, Judge, who heard the case, retired from the bench on the first Monday of January, 1968 without writing an opinion to explain the reasons for his order, which compelled this Court to examine the record very closely.

Our independent study of the record discloses that appellant operates a pharmacy in Collingdale, Pennsylvania. His income tax return for 1966 showed total gross income of $16,764.15, less $1,800 for three exemptions and $1,000 for unitemized deductions, or a net income of $13,964.15, on which he paid a tax of $3,935.64, leaving him approximately $10,000 spendable income. However, one of the items included as business expenses was $2,147.71 claimed as depreciation. If this be included in spendable income and we add the exemptions he claimed for his wife and child at $600 each or $1,200, his spendable income would amount to $13,367 for 1966. The return for 1966 is consistent with the return for prior years beginning in 1961, each of which showed a slight increase over the prior year. There is nothing in this record indicating any falsification of the returns.

Four thousand five hundred dollars would represent one third of his spendable income as herein previously stated. This would be the maximum to which the wife would be entitled under our decisions in the

[ 214 Pa. Super. Page 218]

    absence of exceptional circumstances. Commonwealth ex rel. Sosigian v. Sosigian, 202 Pa. Superior Ct. 188, 195 A.2d 883 (1963); Commonwealth ex rel. Milne v. Milne, 150 Pa. Superior Ct. 606, 29 A.2d 228 (1942). However, when children are involved we have held that the one-third rule does not apply. Commonwealth ex rel. Iezzi v. Iezzi, 200 Pa. Superior Ct. 584, ...


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