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JEFFERY v. JEFFERY (11/16/72)

decided: November 16, 1972.

JEFFERY
v.
JEFFERY, APPELLANT



Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, Dec. T., 1970, No. 798, in case of Marvin R. Jeffrey, a/k/a Marvin R. Jeffery v. Beatrice M. Jeffrey, a/k/a Beatrice M. Jeffery.

COUNSEL

A. A. Guarino, for appellant.

No oral argument was made nor brief submitted for appellee.

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

Author: Watkins

[ 228 Pa. Super. Page 65]

This is an appeal from the order of the Court of Common Pleas, Family Court Division, reducing an order of alimony pendente lite from $15.00 weekly to $10.00 weekly.

On August 31, 1971, Judge Eiseman of the court below entered an order of alimony pendente lite in the sum of $15.00 per week. On November 1, 1971, a Rule of Attachment was issued for failure to pay the order. The appellee-husband, Marvin R. Jeffery, countered with a Petition To Vacate the Order for Alimony Pendente Lite. Both were listed for hearing before Judge Montemuro of the court below on December 17, 1971. The husband paid the sum of $150.00 at the Bar of the court and the attachment petition was continued generally. The petition to vacate was continued to January 7, 1972.

After an evidentiary hearing before Judge Schwartz of the court below, the following order was entered: "Petition to Vacate Order is dismissed. The Court on its own motion reduces the alimony pendente lite to $10.00 per week. Schwartz, J." This appeal followed.

The original order was made based on the following facts: An order of support for the wife is outstanding in the amount of $25.00 per week; husband was then working at two jobs earning as a truck driver $135.00 weekly and as a bartender, $50.00 weekly. The husband

[ 228 Pa. Super. Page 66]

    complied faithfully with the support order but fell in arrears on the alimony pendente lite.

Alimony pendente lite is awarded so that the wife may sustain her action for divorce. Brady v. Brady, 168 Pa. Superior Ct. 538, 79 A.2d 803 (1951); section 46, The Divorce Law Act of October 19, 1967, P. L. 451, § 1, as amended, 23 P.S. § 46. The award lies within the sound discretion of the court. Hammond v. Hammond, 210 Pa. Superior Ct. 386, 233 A.2d 628 (1967). And is based on the needs of the wife. Chambers v. Chambers, 188 Pa. Superior Ct. 506, 149 A.2d 532 (1959) and the husband's income together with all background surroundings. Kordich v. Kordich, 182 Pa. Superior Ct. 132, 125 A.2d 471 (1956).

There is a difference between "maintenance and support" and "alimony pendente lite". Belsky v. Belsky, 196 Pa. Superior Ct. 374, 175 A.2d 348 (1961). The issuance of the award is to maintain her action and is based on the needs of the wife and the income of the husband together with the character, situation and surroundings of the parties. McCormick v. McCormick, 202 Pa. Superior Ct. 250, 195 A.2d 851 (1963). However, it seems reasonable and logical that "alimony pendente lite" just the same as "maintenance and support" may be modified or vacated by change in ...


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