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COMMONWEALTH EX REL. LUONGO v. TILLYE (06/21/74)

decided: June 21, 1974.

COMMONWEALTH EX REL. LUONGO, APPELLANT,
v.
TILLYE



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, Dec. T., 1962, No. 4141, in case of Commonwealth of Pennsylvania ex rel. Helene Luongo v. Robert Tillye.

COUNSEL

Ronald Ervais, with him Becker, Fryman & Ervais, for appellant.

Peter B. Scuderi, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 229 Pa. Super. Page 454]

The appellant, Helene Luongo, has filed this appeal from an Order of the Court of Common Pleas of Philadelphia County, Family Court Division, entered August 3, 1973, increasing from $7.00 per week to $12.00 per week a Support Order for the parties' 12-year-old son, Brian Tillye, who was born on March 12, 1962.

[ 229 Pa. Super. Page 455]

On September 23, 1963, the appellee was found by a jury to be the father of Brian in a Fornication and Bastardy prosecution, and on the same date the Court entered an order against the appellee to pay $15.00 per week towards the support of his son. On October 2, 1963, in response to a petition filed by appellee to reduce, the order was reduced to $7.00 per week. That order has remained in effect until appellant filed a petition to increase on February 8, 1973. Pursuant to a hearing held on June 18, 1973, the court on August 3, 1973, increased the Support Order to $12.00 per week, retroactive to June 18, 1973, later amended to be retroactive to May 18, 1973.

Appellant has filed this appeal alleging that the Support Order is inadequate. Under the facts and circumstances herein presented, we agree and will reverse.

The record is unclear as to the exact financial situation of appellee in 1963 at the time of the original order. Although appellee testified that he had no idea what he was making or what he was earning in 1963, appellee did acknowledge that he was not making as much in 1963 as he is at the present time. However, the lower court found that appellee's father died in 1968 and devised to him a jewelry business on Sansom Street in Philadelphia. This devise of the jewelry business was conditional; the condition placed upon the devise being that he was to pay his two sisters the sum of $10,000 each. Apparently this condition had no time limit, and no payments have been made to the appellee's sisters to date. Appellee testified that he was supposed to start these payments in January of 1974; however, he has developed no detail as to the method, amount or time in which this is to be performed. At the time appellee took over the jewelry business in 1968, the business was subject to debts amounting to $45,000. The building in which the business was and is being conducted and which is now owned by the

[ 229 Pa. Super. Page 456]

    appellee, subject to the conditional devise, was subject to a mortgage on which in 1968 the balance was $27,500. The lower court also found that in the six years in which appellee has owned his late father's business and building, he has managed to eliminate a good portion of the $45,000 debt left by his father and also has managed to reduce the $27,500 mortgage to a present balance of $10,000. The building which was devised to the appellee was in 1968 valued at $55,000.

At the present time appellee supports himself, his wife and their two children. He pays $272.00 a month for rent and estimates that his rent plus utilities are about $500.00 a month. The appellee's tax returns indicate an average taxable income in 1970, 1971 and 1972 of $13,653.78, with the peak year being 1972, in which his taxable income was $16,228.10. We note, although the lower court did not mention this in its opinion, that in 1972 appellee's net profit from the operation of his business was $25,355.71. Appellee testified and the lower court found that his prospects in his business for the immediate future are not promising. The appellee testified that he had no source of income beyond his business, other than an ...


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