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COMMONWEALTH EX REL. BURNS v. BURNS (12/11/74)

decided: December 11, 1974.

COMMONWEALTH EX REL. BURNS
v.
BURNS, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, Dec. T., 1973, No. F-21-383, in case of Commonwealth of Pennsylvania ex rel. Mildred R. Burns v. William F. Burns.

COUNSEL

Garland D. Cherry, with him Kassab, Cherry and Archbold, for appellant.

Charles F. Mayer, for appellee.

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

Author: Cercone

[ 232 Pa. Super. Page 297]

This appeal arises from the entry of a support order in the lower court based upon the husband's pre-retirement income. The appeal contests the amount of the order and the basis upon which it was entered.

The parties were married in 1956, the wife's third and the husband's second marriage. They separated in 1968, and in accordance with a written separation agreement the husband paid his wife $160.00 per week, based upon the salary he was then receiving. He made these payments without fail for six consecutive years until he retired on January 31, 1974.

His explanation as to why he retired was as follows: "Q. And, when is the last time that you received a full pay from Gimbels? A. January 31, 1974. I am not on their payroll after that date.

"Q. Mr. Burns, this retirement from Gimbels, was that voluntary on your part? A. Oh, absolutely. Q. In other words, you could still be working there? A. I could still be working there, yes. Q. And, earning $45,000.00 a year or $50,000.00. A. I think so. Q. What was the amount you were paid in 1973? What was your gross income? A. 1973 was $58,000.00.

"Q. In your retirement could you tell us your specific reason for obtaining retirement? A. Yes. I asked the company two years ago to start thinking about replacing me for two reasons. One, I had the misfortune of having a thirty-two year-old son die of a brain tumor. And, I lost a lot of interest. And, right after that, I found that I had a diabetic condition, which has caused me to go on a very strict diet and has been rather costly and has taken a certain amount of pep out of me. And, they agreed after a year to look for somebody, and it took them six months. So, that is why it was only until recently that I was able to leave. I had to break in a new man."

[ 232 Pa. Super. Page 298]

Accepting this testimony of the husband as the essential part of his case the lower court entered an order for the wife in the sum of $123.00 a week. It should be noted that from January 31, 1974 (the last time the husband received a full pay from Gimbels) until June, 1974, the husband had a total income of $45.92 net per week. As of June, 1974, he received an additional $34.70 net per week increase and in February, 1975, he will receive a final increase of $112.38 net per week. To show the husband's weekly income and to compare that income to the weekly support order, the following chart might be helpful.

Feb. 1974 June 1974 Feb. 1975

     thru thru and

May 1974 Jan. 1975 after

Husband's Income $45.92 $80.62 $193.00

Support Order 123.00 ...


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