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COMMONWEALTH PENNSYLVANIA EX REL. BEVERLY BUEHLER v. WILBERT F. BUEHLER. APPEAL BEVERLY BUEHLER (07/02/81)

filed: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. BEVERLY BUEHLER
v.
WILBERT F. BUEHLER. APPEAL OF BEVERLY BUEHLER



No. 1757 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Monroe County at No. 339, 1979.

COUNSEL

Mark S. Love, Stroudsburg, for appellant.

C. Daniel Higgins, Stroudsburg, for appellee.

Hester, Cavanaugh and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.

Author: Cavanaugh

[ 288 Pa. Super. Page 304]

The wife instituted an action for her support. The lower court ordered her husband to pay her five dollars a week. On appeal the wife argues, inter alia, that the lower court failed to consider the extent of the husband's assets in determining the amount of support. We agree and accordingly remand the case to the court below. The parties married on February 9, 1979; and separated on May 13, 1979. This was the second marriage for the wife and the third marriage for the husband. No children were born of this marriage and all children of previous marriages are of adult age. At the time of the hearing the husband was 59 years old and the wife was 39 years old.

[ 288 Pa. Super. Page 305]

The husband apparently had a long standing problem with alcohol which he apparently successfully concealed from his wife until after they were married. The husband had been employed with a major airline for 38 years. From November, 1977 to April, 1979 the husband had used his accrued medical leave and vacation to maintain his base pay of about $40,000 per year. During this period the husband's net income was approximately $2,000 per month. In April, 1979 he received an additional 90 days of medical leave without pay. At the time of the lower court's hearing in August, 1979 he had net equity in the amount of $4,000 in a credit union which paid an annual interest; he had $1,400 in a checking account; he had recently inherited $10,000 in cash and stocks (about $3,000 in stocks); he had a loan obligation to a bank to which he had applied $5,000 of his inheritance to reduce the balance to $9,000; he owned three parcels of real estate: a four acre parcel which he was offering for sale at $75,000, another four acre parcel, and a smaller parcel; these three parcels were subject to a $35,000 mortgage. The husband had hoped to return to work, but the F.A.A. denied his medical exemption. At the time of the hearing it appeared unlikely that he would return to work, but instead would retire in March, 1980. He did not know what his pension payments would be. He had also applied for monthly social security and employer disability benefits in the amount of $900, but his application had not been approved at the time of the hearing.

The wife prior to the marriage had an income of about $9,000 per year. She had worked as a secretary, a steward and as a cosmetic merchandiser. She gave up all three jobs, apparently at the request of her husband. At the time of the hearing her cosmetic enterprise was starting to pick up, but she had failed to find a full time position that was acceptable to her. She had recently sold property which had been held jointly with her first husband for $19,500.

The wife had sought $250 per week in support from her husband, but the court awarded five dollars a week. The wife argues that the trial court "committed a flagrant abuse of discretion" by attributing an insincere motive to the wife

[ 288 Pa. Super. Page 306]

    and that the court failed to consider the husband's real estate holdings and capital assets.

The lower court expressed the view that the wife had married her husband for economic motives. In its ...


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