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DOELP v. DOELP (09/21/71)

decided: September 21, 1971.

DOELP
v.
DOELP, APPELLANT



Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, Feb. T., 1971, No. 604, in case of Elizabeth McLaughlin Doelp v. David W. Doelp.

COUNSEL

John M. McAllister, with him McAllister, Reif and Shapiro, for appellant.

Francis X. Diebold, for appellee.

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

Author: Cercone

[ 219 Pa. Super. Page 421]

David W. Doelp has appealed to this court from the lower court's entry of an order in the amount of $120.00 weekly for the support of three children, ages 10, 11, and 18. The children are living with their mother from whom appellant is divorced. Appellant has since remarried.

It is the husband's contention that the order is excessive in amount and also that the court below erred in preventing cross-examination of the wife as to the separate income of the children under a trust fund.

According to the record, and as the court below found, appellant's gross receipts for a two week period are in the sum of $630.22. The court, however, does not, in its opinion, state any figure for the take-home pay except to state "the respondent's take-home pay could be increased at least by $54.90 bi-weekly merely by having the proper deductions withheld from his paycheck". Even with this adjustment for the excessive amount of federal income tax withheld, the husband's net take-home pay for the two-week period would be $460.24 or $230.12 weekly. Of course, as the record below indicates, this net amount is further subject to state income tax and local tax deductions, some of which had become effective in May 1971. The new state income tax at 2.3% would mean a further deduction of approximately $15.00 from the bi-weekly pay or $7.35 weekly, thus lowering appellant's net weekly pay to $222.89. This would leave appellant with approximately $100.00 weekly after payment of the $120.00 support order. The appellant, who is a staff architect employed by Vincent G. Kling & Associates, testified as to his expenses as follows: "By Mr. McAllister: Q. Would you refer to that statement, Mr. Doelp, and give us a breakdown of your monthly expenses, your present monthly expenses? A. Rent, $220 a month.

[ 219 Pa. Super. Page 422]

Q. You live in what part of the city? A. Society Hill. Q. That's in center city; is that correct? A. Yes, basically; yes. Q. All right, fine. A. Telephone, $10.00 a month. Gas, $5.00. Electric, $15.00 a month. Transportation: Garage, gas for the car, $20.00 a month. Q. Is the car a necessity for you, Mr. Doelp? A. Yes. Q. In what respect is it necessary? A. I occasionally have to visit the sites of some of my projects. Q. Where might these projects be located? A. Anywhere. But the ones I would use the car for would be in the Philadelphia vicinity, within 150-mile radius. Q. All right. A. Car insurance, $29.66 a month. That is approximate. Clothing, $20.00 a month. Cleaning, shirts, laundry, it's like $20.00 a month. Professional dues and magazines, $20.00 to $16.00 a month. That's approximate. Christmas presents, twelve-fifty. Q. Is that for your children? A. That is per month, pro rated over the entire year for the children. That is not anything that I might purchase for anyone else. Entertainment during custody, $10.00 a month. Church, $23.00 a month. Sundries: Shaving, drugs, toothpaste, and so forth, just for me, $12.00 a month. Life insurance on the boys, $33.00 a month. Barber, $5.00 a month. Q. Back to your life insurance, who is the beneficiary of these insurance policies? A. The three boys. Q. All right; go ahead, continue. A. Barber, $5.00 a month. Food averages between $20.00 and $25.00 a week, for $100.00 a month. And car maintenance, an average of $8.00 a month. Q. After the payment of these necessities, what does it allow you on a weekly basis for your own entertainment and the entertainment of -- your own entertainment, Mr. Doelp? A. Nothing. Virtually nothing."

It is readily apparent, therefore, that the lower court's order does impose a hardship upon the appellant, and it is our opinion that the entry of an order

[ 219 Pa. Super. Page 423]

    in such amount without inquiry into the children's interest in a trust fund, was error. The wife was asked: "By Mr. McAllister: Q. Are you the recipient or beneficiary of a trust fund on behalf of these children? A. That is personal. I will never answer it. Mr. Diebold: Objection, your Honor. This is entirely irrelevant to a support proceeding for her sons. The Court: The objection is sustained. Mr. McAllister: I think our courts have ruled, your Honor, not only are we entitled to go into her financial income in the course of a year, but especially if there is a trust fund where she is a trustee and where -- The Court: I don't ...


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