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

decided: December 11, 1974.

COMMONWEALTH EX REL. COLLINS
v.
COLLINS, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 30, in case of Commonwealth of Pennsylvania ex rel. Elizabeth Collins v. H. Donald Collins.

COUNSEL

Marshall L. Grabois, and Bean, DeAngelis, Kaufman & Kane, for appellant.

Joseph P. Lynch, and DiGiacomo & Lynch, for appellee.

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

Author: Cercone

[ 232 Pa. Super. Page 106]

This is an appeal by the husband, Donald Collins, from an order of support in the amounts of $40.00 per week for his wife, Elizabeth, and $30.00 per week for their youngest son, Kevin. Mr. Collins contends that the order is excessive and presents either an abuse of discretion or a misinterpretation of the law on the part of the lower court.

The guide for our review in appeals from the denial of support orders is that we will not disturb a support order unless there is a clear abuse of discretion by the court below in fixing the award, or unless the order is based upon a misinterpretation of the law. Hecht v. Hecht, 189 Pa. Superior Ct. 276 (1959). In addition it is well established that the purpose of a support order is to provide a satisfactory allowance for the support and maintenance of the wife and child, not to punish the husband. Therefore, reasonable allowances must be made for the husband's living expenses. See generally 24 Am. Jur. 2d, Divorce & Separation ยงยง 553-54 & 839; Annot., 1 A.L.R. 3d 280, 290 & 335. When we apply those principles to the facts of the instant

[ 232 Pa. Super. Page 107]

    case, however, we conclude that the support award established by the lower court is excessive and must be modified.

Mr. and Mrs. Collins were married in 1946 and have four children; all of whom, with the exception of Kevin, have obtained their majority and are not, therefore, included in the support order.*fn1 During the course of their marriage, Mr. Collins served twenty-two years in the Navy, and retired with the rank of Lieutenant Commander. During World War II he flew as a carrier pilot and earned two air medals.

In September of 1973 Mr. Collins moved out of the family residence in Montgomery County. Mrs. Collins, however, continues to reside in the home with two of her sons, Kevin and Donald. Donald, who is twenty-three years old, had recently resigned from the Air Force at the time of the hearing and was not then gainfully employed.

Mr. Collins is a 49-year-old Navy pensioner, and as such receives a weekly income, net taxes, of $108.00. In addition, he also nets $72.00 per week as a self-employed real estate broker, a career he launched three years ago. The evidence indicates, however, that Mr. Collins since his retirement from the Navy has not been working at nearly his full potential or capacity. He failed at numerous jobs prior to his entry into the real estate business; and, despite the ...


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