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COMMONWEALTH EX REL. MALIZIA v. MALIZIA (06/21/74)

decided: June 21, 1974.

COMMONWEALTH EX REL. MALIZIA, APPELLANT,
v.
MALIZIA



Appeal from order of Court of Common Pleas of Cameron County, Sept. T., 1972, No. 25, in case of Commonwealth of Pennsylvania ex rel. Daisy Ellen Malizia v. Carl Anthony Malizia.

COUNSEL

Harold B. Fink, and Fink and Young, for appellant.

Joseph J. Malizia, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 229 Pa. Super. Page 109]

Appellant contends that the lower court failed to properly consider her husband's earning capacity in setting a support order.

Husband and wife have been separated since June 11, 1972. As a result of injuries sustained in an industrial explosion and numerous disabling medical afflictions, the husband-appellee has been prevented from working at his full capacity as a cement and carpentry worker, at which vocation he earns $3.50 per hour. The wife-appellant, on the other hand, suffers from multiple sclerosis, a progressively incapacitating disease, and has been receiving $142.00 per month in disability benefits.

At a hearing before the Honorable Paul B. Greiner, President Judge of the Fifty-Ninth Judicial District, and the Honorable R. L. Lunn, Associate Judge of the Court of Common Pleas of Cameron County, it was determined that, in the year prior to the parties' separation, the appellee had earned $2,198.00 from his employment, and had made withdrawals of $1,700.00 from a mutual fund investment,*fn1 or a total of $3,898.00. In 1972, the year of separation, husband's earnings were $2,596.56 and withdrawals totaled $750.00; the

[ 229 Pa. Super. Page 110]

    appellee was unable to work during a portion of the year as a result of surgery. The appellee testified that he needed $268.46 per month to sustain himself.*fn2 The appellant said that she needed "at least $150.00 a month" above and beyond the $142.00 a month she was receiving as disability benefits. The wife-appellant occupies the marital home (mortgage-free) owned by the parties, on which the husband pays the taxes of $213.18 a year and insurance of $100.00 per year. In addition thereto, the husband pays premiums of $384.00 per year for family hospitalization insurance.

Based on these facts, and relying on a stipulation by counsel that the reasonable rental value of the residential dwelling was $70.00 per month, the Court ordered the appellant to pay his wife a total of $124.38 a month, which figure included the following credits:

$35.00 (one-half of fair rental ...


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