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ANN MARIE FRANCIS v. GEORGE H. FRANCIS (11/19/86)

filed: November 19, 1986.

ANN MARIE FRANCIS
v.
GEORGE H. FRANCIS, III, APPELLANT



Appeal from the Order entered on November 25, 1985, in the Court of Common Pleas of Chester County, Civil Division, at No. 1990 N. 1984.

COUNSEL

Frank W. Hayes, West Chester, for appellant.

Linda L. MacElree, West Chester, for appellee.

Wieand, Beck and Johnson, JJ. Wieand, J., concurs in result.

Author: Beck

[ 358 Pa. Super. Page 394]

Husband appeals from a Chester County order awarding spousal and child support. Husband and wife separated in 1984. They have two living children, a daughter born in December 1975 and a son born in July 1982. Between these two children, the couple had a third child who lived for nine months. The wife and children reside in the marital home.

Included in the support order were the findings of fact that wife's net monthly income or earning capacity was $1279 and husband's net monthly income or earning capacity was $3500. The portions of the order relevant to this appeal directed the husband to pay $300 a month support for his wife and $900 a month support for his two children, and $100 a month for arrearages. In addition, the order directed the husband to pay a gross amount of $489 a month for mortgage, taxes and insurance on the marital residence for which he receives $324 per month credit toward spousal and child support. The order also directed the husband to continue to pay his daughter's private school tuition, and was made retroactive to the time of filing the complaint. The court conditioned its order on husband's paying "$1,100 per month to Plaintiff [wife] for one-half of net rental of joint property leased to business operated by Defendant [husband] and his brother."

I.

The husband initially complains that the court abused its discretion by enforcing the rental income contract through its support order. We find the husband's challenge to be without merit. It is clear that the court was not enforcing the rental contract through the support order. The court did not order the husband to pay the rental income of $1,100 a month as additional support, but predicated its support order on wife's income from the rental property. It is clear that if the wife had not been entitled to receive the rental income, the support order would have

[ 358 Pa. Super. Page 395]

    been higher. Since the property is jointly owned, each party is entitled to one-half the income from the property. The proportionate share of rental income to which wife is entitled was stipulated and therefore the trial court was not in error in conditioning the support order on the wife's receiving one-half the rental income or $1,100 a month.

II.

The trial court placed the obligation for paying for the daughter's private school solely upon the husband. Review of the record shows that during the marriage the husband removed his daughter from public school in first grade and enrolled her in the private school, which she has attended for more than two-and-a-half years. It appears the husband does not object to child's attending ...


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