No. 602 October Term, 1979, Appeal from Order of the Court of Common Pleas, Lackawanna County, Dated February 16, 1979 at No. 1787 of 1976, Criminal Action, Support.
Henry C. McGrath, Scranton, for appellant.
William F. Bradican, Scranton, for appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
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Appellant contends that the lower court abused its discretion in entering a support order because (1) the court failed to properly determine appellant's earning capacity and granted support in an amount in excess of one-third of his earning capacity; and (2) the portion of the order requiring appellant to pay appellee's reasonable medical bills and commuting expenses is too indefinite to enforce. For the reasons which follow, we vacate the lower court's order and remand the case.
The parties were married in 1947 and separated in 1975. Thereafter, appellee instituted an action to obtain support for herself. The record reveals the following: Appellant is president and sole stockholder of Philips & Maier, Inc. (hereinafter P & M) and Spring Service Company (hereinafter Spring Service). Appellant also has an interest in A & M Distributors, a partnership. In 1977 and 1978, P & M paid appellant a gross salary of $340.00 per week. In addition to appellant's salary, which he sets himself, P & M supplies appellant with an automobile for his personal use and pays the automobile operating expenses, appellant's entertainment
[ 274 Pa. Super. Page 583]
and traveling expenses, and membership fees and dues in certain organizations. In 1977, appellant received $593.89 from A & M Distributors. He received no salary from Spring Service in 1977. In 1977, the net income (after taxes) of P & M was $7,021.84. On its federal tax return for that year P & M deducted $9,174.85 as depreciation. The net income of Spring Service in 1977 was $13,359.90. In 1977, Spring Service deducted $8,215.14 as depreciation.
As of April, 1978, appellee was employed by the Pennsylvania Department of Public Welfare and received a weekly gross salary of $155.62 ($117.00 net). Appellee owns a $12,000.00 savings certificate which pays 7 1/4% interest annually. In addition, P & M provides and maintains an automobile for appellee's use. Appellee submitted an itemized list to the lower court showing that she needed $225.50 per week for her living expenses.
On February 16, 1979, the lower court entered an order directing appellant to pay appellee $175.00 per week for her support and "to pay her reasonable medical bills and commuting expenses." This appeal followed.
It is well-settled that "a support order cannot be confiscatory but must secure a reasonable living allowance, considering the supporting spouse's earning capacity and property and the parties' station in life." Kurpiewski v. Kurpiewski, 254 Pa. Super. 489, 493, 386 A.2d 55, 58 (1978). Additionally, in determining the amount of a support order, the court must consider the nonsupporting spouse's separate earnings as one of the relevant circumstances. Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Super. 247, 251, 311 A.2d 701, 703 (1973); Commonwealth ex rel. Borrow v. Borrow, 199 Pa. Super. 592, 595, 185 A.2d 605, 606 (1962); Commonwealth v. Kauffman, 199 Pa. Super. 375, 379, 185 A.2d 799, 800 (1962). A support order may not exceed one-third of the supporting spouse's ...