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FRED T. BEES v. JOHANNA F. BEES (04/28/78)

decided: April 28, 1978.

FRED T. BEES
v.
JOHANNA F. BEES, APPELLANT



COUNSEL

Jackson M. Sigmon, Bethlehem, for appellant.

Alfred P. Antonelli, Bethlehem, submitted a brief, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Van der Voort, J., files a concurring opinion in which Cercone, J., joins. Price, J., files a dissenting opinion in which Jacobs, President Judge, joins.

Author: Spaeth

[ 255 Pa. Super. Page 21]

Appellant contends that the lower court's award of $35 per week alimony pendente lite was inadequate.*fn1 We agree.

The parties were married in 1943. In June 1975 appellee filed an action for divorce, and in November left the marital abode. Appellant, who is 53 years old, was employed at the time she was married; since then she has only worked two days a week for 10 years as an upstairs maid. She has not worked since 1972, when she had a hysterectomy. Her only sources of income, since her husband's departure, are a $3,000 inheritance, and $40 per month from her daughter who lives with her. Appellant lives in the jointly owned, unencumbered marital residence and owns 60 shares of AT & T common stock. At her deposition, in January 1976, appellant stated that, due to her living expenses, she had only $2,000 left of her inheritance. She requested $150 per week alimony pendente lite.

The lower court found that appellee's net income in 1975 was over $15,000 and that he owns an automobile and has other assets worth more than $13,000.

The purpose of alimony pendente lite is to provide a financially dependent spouse with income during the pendency of divorce proceedings to ensure that that spouse is not put at a financial disadvantage by reason of bringing such proceedings or by being required to defend against them. Wiegand v. Wiegand, 242 Pa. Super. 170, 363 A.2d 1215 (1976); Kayaian v. Kayaian, 223 Pa. Super. 103, 297 A.2d 136

[ 255 Pa. Super. Page 22]

(1972); Belsky v. Belsky, 196 Pa. Super. 374, 175 A.2d 348 (1961). The elements to be considered are the respective incomes, estates and earning capacities of the parties, and the surrounding circumstances. Kayaian v. Kayaian, supra; McCormick v. McCormick, 202 Pa. Super. 250, 195 A.2d 851 (1963).

Ordinarily the amount awarded the wife should not exceed one-third of her husband's income, but the exact amount should be left to the discretion of the court of common pleas which has the advantage of seeing and hearing the parties. This court will not reverse except for a plain abuse of discretion. Gangoff v. Gangoff, 163 Pa. Super. 570, 63 A.2d 115, Mather v. Mather, 143 Pa. Super. 608, 18 A.2d 492, Brady v. Brady, 168 Pa. Super. 538, 79 A.2d 803, Kordich v. Kordich, 182 Pa. Super. 132, 134, 125 A.2d 471, 472 (1956).

Here a husband with a net income of over $15,000 per year has been ordered to pay only $1,820 per year to support his wife. Since this court has the power to modify an award of alimony, Act of July 31, 1970, P.L. 673, No. 223, art. V., ยง 504; 17 P.S. 211.504 (Supp.1976), we shall so order.

The order of the lower court is vacated and the case is remanded with instructions that after a further hearing, the amount ...


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