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COMMONWEALTH EX REL. TIZER v. TIZER (06/13/69)

decided: June 13, 1969.

COMMONWEALTH EX REL. TIZER, APPELLANT,
v.
TIZER, APPELLANT



Appeals from order of Court of Quarter Sessions of Montgomery County, Sept. T., 1966, No. 45, in case of Commonwealth ex rel. Mildred Tizer v. William Tizer.

COUNSEL

Sidney M. DeAngelis, with him Bean, DeAngelis, Tredinnick & Giangiulio, for relatrix.

Samuel Kagle and Jack A. Rounick, with them Oscar Brown, and Moss, Rounick and Hurowitz, for defendant.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Montgomery and Hoffman, JJ., concur in the result. Jacobs, J., dissents.

Author: Cercone

[ 214 Pa. Super. Page 446]

This case comes to us on appeal from an Order of the Court of Quarter Sessions of Montgomery County dated November 6, 1968, effective July 18, 1968, directing William Tizer to pay his wife nine hundred ($900.00) dollars per month for her support and to replace her automobile with a new model. Both sides appealed the Trial Court's decision.

The parties were married in 1942 and have three sons, the oldest is twenty-four years of age and a college graduate, the middle child is nineteen and the youngest thirteen years old. Mr. Tizer is approximately forty-eight years of age and Mrs. Tizer is approximately forty-six. Mr. Tizer is in the floor covering business, operating under the name of Royal Tile Company.

Following their marriage, the parties lived together continuously for twenty-two years. Then, in 1964 and again in 1965, Mr. Tizer separated from his wife for two short periods. On March 14, 1966, Mr. Tizer separated himself a third time from his wife and set up separate living quarters. Mrs. Tizer filed a Petition for Support and, after hearings beginning October 18, 1966, the Court on March 22, 1967 ordered Mr. Tizer to pay to his wife the sum of two hundred and thirty ($230.00) dollars per week for her support and the support of their two minor children and to replace her 1964 automobile with a new model.

[ 214 Pa. Super. Page 447]

Prior to that initial hearing of October 18, 1966, counsel for Mrs. Tizer served on Mr. Tizer a subpoena duces tecum to produce certain documents regarding his personal and corporate financial affairs. At this hearing, however, counsel for Mr. Tizer succeeded in prevailing upon the Court that it was not necessary to make such a financial inquiry since his client was willing to pay his wife any amount the Court ordered based upon her needs. That Order of March 22, 1967 was never vacated and remained in effect although William Tizer returned to the family residence on May 12, 1967, thus ending the third separation of fourteen months duration.

In March of 1968, while the parties were still living together, William Tizer filed a Petition to vacate the Order of March 22, 1967. Mrs. Tizer filed an Answer to this Petition, asserting that the Order should not be vacated, and also filed a Cross-Petition to increase the original Order. Hearings on these Petitions were held before the Honorable Judge Vogel beginning in May of 1968, while the parties were still living together. On May 27, 1968, two weeks after the trial began, Mrs. Tizer left the marital domicile and the hearings continued throughout the better part of 1968, resulting in the Order of November 6, 1968 of nine hundred ($900.00) dollars per month and a new model automobile, from which both parties appealed.

The Appeal of Mildred Tizer is based on two contentions: (1) that the Trial Court erred in not inquiring into her husband's income and assets before entering the support order; and (2) that the Trial Court abused its discretion in not awarding an amount of support based on the high standard of living to which the parties were accustomed prior to their separation.

The Appeal of William Tizer is based on several grounds: (1) that the Trial Court should have decided the ultimate support ...


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