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February 5, 1982


No. 254 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Luzerne County, No. 2846 of 1979.

Before Hester, DiSALLE and Popovich, JJ. DiSALLE, J., did not participate in the consideration or review of this case.


Leona Kovaleski, appellee, and Leo Kovaleski, appellant, were married on November 22, 1972. The parties later separated in January, 1978 and the appellee filed a complaint for support on November 14, 1979 in Luzerne County. A hearing was scheduled in December, 1979 in the County Probation Office; that was followed on January 18, 1980 by a hearing before the Honorable Patrick J. Toole, Jr. Judge Toole ordered the appellant to pay $280.00 per week for the support and maintenance of the appellee plus the mortgage, taxes and one-half of household maintenance costs on the marital residence. The appellant was also ordered to pay $35.00 per week for arrearages.

The appellant filed this appeal on January 28, 1980. On April 28, 1980, this court remanded without argument, for the purpose of supplementing the record with testimony taken directly from the parties and other witnesses. No testimony was elicited at the hearing before Judge Toole; instead, oral arguments were presented by counsel for both parties. Pursuant to the remanding order, a hearing was held August 22, 1980 before Judge Brominski.

After reviewing the record and briefs, our attention is focused on two areas of dispute. The first evolves from the appellant's contention that the trial judge on remand made several procedural and evidentiary errors. This first area of dispute can be further broken down into there issues.

We must first decide whether the trial judge on remand erred in refusing the appellant's request to amend his answer in order that he could argue the appellee's alleged non-entitlement to support. Appellant cites Pa. Rules of Civil Procedure No. 126 in support of his position that an Answer may be amended at any time. In denying the request to amend, the trial judge interpreted his assignment as one to preside over a hearing that would supplement the evidence presented at the earlier hearings and thereby produce a more complete record for appeal. The trial judge also denied the amendment because the appellant did not amend his Answer at the probation office or at the hearing conducted by Judge Toole. We find no error in the use of the foregoing for the denial of the Motion to Amend.

The appellant also alleges that the trial judge on remand erred when he would not accept the appellant's testimony concerning the appellee's monthly expenses. Since the appellee's testimony included statements of her monthly expenses without documentation, the appellant is of the opinion that he should have been permitted to rebut appellee's testimony.

We agree with the ruling of the trial judge. To allow the appellant to testify concerning appellee's monthly needs and expenses would necessarily entail speculative evidence. The appellant had been separated from the appellee for more than two years at the time of the August 22, 1980 hearing; he was not in a position to know the precise monthly expenses incurred by the appellee. There was a high risk that the source of his opinions would most likely be the pleadings and the testimony elicited during earlier proceedings; therefore, his testimony would be less fact and more hearsay. The appellee, without corroborative documentation, was an adequate source for the proof of living expenses. Since she had been the only person residing permanently in the marital home, she alone could give accurate evidence of her total financial status.

The final issue presented by the allegations of procedural and evidentiary error is whether the trial judge on remand was justified in overruling the appellant's objection to alleged leading questions proposed by the appellee's counsel. The appellant was particularly alarmed by the fact that the appellee's counsel was identifying certain types of living expenses in his questions.

We do not agree with that allegation. Leading questions are prohibited because they dictate the witness's reply; the witness becomes an automaton who merely affirms or denies the facts proposed in the question. The use of leading questions is generally left to the discretion of the trial judge. Commonwealth v. Reeves, 267 Pa. 361, 110 A. 158 (1920). The lower court overruled the objection because no prejudice was inflicted on the appellant; the court was compelled to learn of each monthly need and expense before issuing a just and reasonable support order. Appellee's counsel was assisting the court to achieve that end.

It can be argued that counsel's direct examination did not include leading questions. Counsel was not indicating any figures; he was merely directing the appellee's attention to certain expenses that had to be addressed.

The second area of dispute is whether the evidence supported the lower court Order. The appellant argues that the appellee did not meet her burden of proof. When determining an appropriate amount for the support of one's spouse, the court is not restricted to a perusal of the husband's actual earnings. It may also consider his earning capacity and the extent and nature of his property and financial resources. Commonwealth ex rel. Rankin v. Rankin, 170 Pa. Super. 570, 87 A.2d 799 (1952); Commonwealth ex rel. Litz v. Litz, 190 Pa. Super. 310, 154 A.2d 420 (1959); Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437 (1953).

A support order must be governed by the standard of living enjoyed by both spouses during the marriage prior to separation. It is inconsequential that the wife was elevated to a significantly higher standard of living as a result of the marriage. A spouse can adapt quickly to a more comfortable lifestyle and become dependent on its resources. A husband cannot escape the responsibility of maintaining his wife at such a level simply because she had lived more frugally prior to the marriage. McGavie v. McGavie, 222 Pa. Super. 246, 294 A.2d 795 (1972); Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967).

The true amount of the appellant's net income for 1979 is unsettled; however, all parties agree that it was not less than $59,000.00. The appellant's 1979 return reflects $22,000.00 in depreciation. That figure reduces net income for tax purposes only. It was not money actually paid out in 1979; therefore, the appellant's actual net income was substantially higher than that figure reflected on the 1979 return. Moreover, the appellant was the owner of commercial real estate in Swoyersville and Scranton and residential real estate in Kingston; he owned six vehicles, one airplane and he possessed an equity of $140,000.00 in Ziebart Auto-Truck Rustproofing. It would have been inequitable, then, for the lower court to consider only the appellant's net income taken from the 1979 tax return when actual earnings and possessions portray a man of much more ...

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