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COMMONWEALTH EX REL. CAPLAN v. CAPLAN (10/28/75)

decided: October 28, 1975.

COMMONWEALTH EX REL. CAPLAN, APPELLANT,
v.
CAPLAN



Appeal from order of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 310, in case of Commonwealth ex rel. Vickey Caplan v. David Caplan.

COUNSEL

Alan E. Boroff, with him Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.

Bernard M. Gross, with him Lawrence G. Metzger, Paul J. Drucker, and Gross & Sklar, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Watkins

[ 236 Pa. Super. Page 606]

This is an appeal from the order of the Court of Common Pleas of Montgomery County in an action brought under the Civil Procedural Support Law for the support of the wife and two children.

The husband-appellee, David Caplan, is self-employed in the retail meat business and a marketing business in disposable paper products which according to the record has been greatly curtailed. The parties were married in 1948 and are the parents of three children, an adult son and two daughters. The daughters at the time of the hearing were 14 and 8 years of age respectively. The parties resided at 208 Stonehouse Lane, Wyncote, Cheltenham Township, Montgomery County, for a period of eight years prior to their separation. The wife still resides there while the appellee lives in an apartment where he pays $168 per month rent.

[ 236 Pa. Super. Page 607]

Extensive hearings were held and disclose that upon separation the parties divided their cash savings accordingly and investments accumulated over the years are held in escrow, the income from which is not available to the appellee; that in prior years when both parties were actively engaged in the operation of the business they enjoyed a sizeable income and had a high standard of living, but at present only the appellee being active in the business and economic and competitive conditions being what they are, the net available income of the appellee is approximately $13,000.00. The order of the court below directed the appellee to pay $135.00 per week for the support of the wife and the two minor children.

The court below indicated in its opinion that the earnings and earning power of the wife were taken into consideration by the court in fixing the order. "The wife worked for and with her husband for approximately ten years when she ceased working about two or three years prior to the hearing. The defendant testified that she was an excellent cashier and could earn $4.00 per hour if she sought employment. This is a fact which the court took into consideration in arriving at the amount of the order."

Credibility of witnesses is for the trial judge to determine as he has the parties before him and can observe their demeanor and attitude and can make a more reasonable assessment of where the truth lies than our Court.

It is the function of the Superior Court to determine whether there is sufficient evidence to sustain the court below or whether the court below was guilty of an abuse of discretion. A finding of an abuse of discretion is not lightly made and is determined only upon the showing of clear and convincing evidence that would require reversal of the lower court. ...


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