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WEISER v. WEISER (03/29/76)

decided: March 29, 1976.

WEISER, APPELLANT,
v.
WEISER



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 73-03497, in case of Norma Rae Weiser v. Gerald J. Weiser.

COUNSEL

Marvin Comisky, with him Norman Perlberger, and Blank, Rome, Klaus & Comisky, for appellant.

Paul Matzko, with him Krusen, Evans & Byrne, for appellee.

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

Author: Watkins

[ 238 Pa. Super. Page 490]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Family Division, in which the court below directed the defendant-appellee, Gerald J. Weiser, to pay to the wife, Norma Rae Weiser, the appellant, the sum of $150 per week for the support of the wife and three children.

The position of the wife in this appeal is that the court's order is inadequate because the court failed to take into consideration the husband's earning potential and the standard of living to which he had acclimated the family.

The husband is a patent lawyer who had been employed in the law firm of Dechert, Price and Rhoads at a yearly salary of about $40,000.00. In March, 1973, the husband terminated his employment at Dechert, Price and Rhoads and went into practice on his own, eventually forming his own partnership with two other attorneys.

[ 238 Pa. Super. Page 491]

His earnings from the new employment at the time of the hearing were $340.00 per week.

The parties were married on April 15, 1951. The husband moved out of the family home on July 4, 1973. The three children of the marriage were 20, 18 and 16 years of age and remained with the wife. Two of the children are presently enrolled in college while the youngest is a student at a private boarding school. The wife has a separate income of $10,000.00 a year. At the hearing before the court below the wife presented evidence that tuition and expenses of the children's education amounted to $16,715.00 per year and the household expenses amounted to over $20,000.00 per year. We are not convinced that this is not exaggerated, especially the household expenses.

This Court's review of support orders is limited to a determination of whether there is evidence to support the order and if so, the order will be reversed only if there has been an abuse of discretion. Commonwealth ex rel. Goichman v. Goichman, 226 Pa. Superior Ct. 311, 316 A.2d 653 (1973).

Appellate courts are becoming more reluctant to substitute themselves as super-support courts when they have not had the opportunity to see and hear the witnesses and so determine credibility. We are mindful of the rule which provides that it is the earning potential of the father which is the determinative factor in ascertaining the ability to pay support to the family rather than the actual earnings. Commonwealth ex rel. Raitt v. Raitt, 203 Pa. Superior Ct. 226, 199 A.2d 512 (1964).

It is undisputed that a father or husband cannot intentionally reduce his actual earnings and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family. Courts have traditionally viewed with suspicion any sudden reduction of the support payments based on such income reductions. Commonwealth ex rel. Snively v. Snively, 206 Pa. Superior Ct. 278, 212 A.2d 905 (1965).

[ 238 Pa. Super. Page 492]

Be that as it may, we are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income.

The court below in a very detailed and carefully reasoned opinion had this to say:

[ 238 Pa. Super. Page 493]

"Counsel for petitioner in arguing that defendant's former salary should control submitted precedents in which a defendant either intentionally left a lucrative position and thereby drastically reduced his earnings, intentionally kept his earnings to a minimum, or asserted a reduced income out of proportion to the amount he appeared to be spending. Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247 (1973) (lower court found that defendant's testimony was incredible and that his reduction in income was intended to defeat his wife's claim to support); Commonwealth ex rel. Snively v. Snively, 206 Pa. Superior Ct. 278 (1965) (defendant voluntarily quit his job and went to college, virtually eliminating his income and taking on a financial burden in the form of school expenses); Commonwealth ex rel. Raitt v. Raitt, 203 Pa. Superior Ct. 226 (1964) (a pharmacist with post graduate degrees had an earning potential far greater than the amount he made in a local pharmacy); Commonwealth v. Trimble, 197 Pa. Superior Ct. 644 (1962) (defendant made an insufficient effort to obtain employment and deliberately withdrew from income producing work); Commonwealth ex rel. Kane v. Kane, 193 Pa. Superior Ct. 98 (1960) (defendant's standard of living belied his claim to a very low income); Commonwealth ex rel. Wieczorkowski v. Page 493} Wieczorkowski, 155 Pa. Superior Ct. 517 (1944) (son contributed his services to parent for his board and keep). In such situations the courts have indicated that the husband's earning potential should be the basis for the support order.

"However, in the instant case, there was no indication that Mr. Weiser struck out on his own so as to defeat his family's right to support. In fact he began his new association several months before he was separated from Mrs. Weiser. There was no evidence that he was concealing income or that his standard of living was inconsistent with his claimed earnings. Moreover, the amount he was drawing was not inconsiderable.

"A case which is more on point is Commonwealth ex rel. Shaffran v. Shaffran, 92 Montg. Co. L.R. 339 (1969), aff'd. 217 Pa. Superior Ct. 856 (1970). This case involved a husband who left a job in an advertising agency, where his monthly income was $1350, to form his own agency. His monthly income for the first year was about half his former income but it increased in successive years so that at the time of the court's decision, he was earning about $986. The court found that the change was not made to deliberately reduce his income but for the purpose of avoiding a limited future in the former agency and with the hope of increased future earnings. The court entered a support order averaging about 62% of his current income for the maintenance of his wife and two children. The wife wanted the order to be based on his past income. The Court stated that '(a) support order should not be based on the husband's past earnings, if it would be unrealistic to do so in light of present circumstances.' Id. at 341. See also, Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa. Superior Ct. 364 (1972).

[ 238 Pa. Super. Page 494]

"'The Court may ordinarily only make support orders based on a husband's property, income, and earning ability at the time of the hearing, not on what they may have been in the past.' Commonwealth v. Testa, 226 Pa. Superior Ct. 585, 588 (Advance Reports, 1974). Accordingly, based upon Mr. Weiser's earning ability at the time of the hearing the award in the present case was approximately one half of Mr. Weiser's spendable income after taxes. 'Although there is no rule which says that an award for a wife and children may not exceed one half of the husband's income, it must not, nevertheless, impose an unreasonable burden on him.' Commonwealth ex rel. Lipsky v. Lipsky, 214 Pa. Superior Ct. 215, 218 (1969).

"Mr. Weiser had considerable expenses. His rent was $58.50 weekly; his car payments were $33.00 per week. He alleged that he spent $60.00 per week on food, about $5 per week on clothing, $7.50 for Blue Cross and Blue Shield for the entire family, totaling $164.00, plus additional amounts for other need. In all he alleged the total of his weekly expenses and outstanding bills*fn1 to be $587.70. No matter how inflated that figure might have been, it was clear that he was in need of at least $165 taking into account the amounts specifically listed above, additional expenses and his debts. This figure when added to the support order of $150.00 totals $315.00, which could well be the net remainder after taxes are deducted from his earnings of $400 per week in 1973, and unquestionably when deducted from his draw of $340 at the time of the hearing."

[ 238 Pa. Super. Page 495]

As we said in Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Superior Ct. 301, 306, 310 A.2d 672, 674 (1973): "It seems certain that appellee (wife) and her children are quite capable of spending any sum appellant (husband) is ordered to provide for them."

However, in this case, as pointed out by the court, his change of employment came before the separation so that it is contended that it was not for the purpose of reducing the income of the family on separation. As he was a lawyer, we are not so naive as to believe that support payments may not have been anticipated by him. Another disturbing factor is that he continued his own standard of living as if he were receiving the income to which he had been accustomed and which was clearly extravagant in relation to his current income. This is illustrated by the fact that he took three expensive vacations since the separation and continued his life style.

Appellee's change in employment resulted in an income reduction of more than one half. It is also a fact that as a partner in the law firm he could control the draw and his weekly income of $340 may not accurately reflect his new earnings. It is for these reasons that we feel the award is inadequate. Most certainly he has the right to establish his own business but not at the expense of his family, whose life style he created based on $40,000.00 per year income which now must be changed to meet the new conditions while he continues to enjoy his usual high standard.

Under the circumstances set forth in this case, we feel constrained to hold the amount of the award to be an abuse of discretion and direct that the award be modified upward to provide for the payment of support of the wife and three children to the sum of $200 weekly.

Disposition

Order modified to provide for the payment of support for wife and children in the amount of $200.00 per week.

[ 238 Pa. Super. Page 496]

Concurring and Dissenting Opinion by Spaeth, J.:

Appellant, Norma Rae Weiser, has asked that we reverse the support order of the Court of Common Pleas of Philadelphia County awarding her $150.00 per week for herself and her three children. She argues, first, that the lower court abused its discretion when it failed to consider appellee's earning capacity and instead based its support award upon his actual earnings, and, second, that the lower court erred when it gave credence to appellee's testimony about his current income. The majority holds that the amount of the award constitutes an abuse of discretion, and directs that the award be increased to $200.00 per week. I cannot join this disposition. Although I find the record before us inadequate to sustain the order of the lower court, I find it an even more inadequate basis for this court's independent computation of a new award. In my view, the better disposition would be to reverse the order of the lower court and remand for a new evidentiary hearing. At such a hearing, the lower court could order further testimony in the areas in ...


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