Opinion
April 26, 1945.
July 19, 1945.
Husband and wife — Support — Infants — Amount of order — Ability of husband to pay — Separate estate of wife — War bonds savings.
1. The fact that a wife may receive a moderate inheritance or that she has some savings of her own does not deprive her of her right to support by her husband.
2. What is reasonable for the maintenance of a wife and child in the light of the husband's ability to pay determines the proper amount of an order for support.
3. In a support proceeding, it was Held on appeal that respondent's lowered earnings for the period but one month prior to the reduced order and the fact that out of his weekly salary a stated sum was deducted to apply on his subscription for war bonds, did not, in the circumstances, justify the reduction of the original order for the support of respondent's wife and child.
Before BALDRIGE, P.J., RHODES, HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 177, April T., 1945, from order of County Court, Allegheny Co., 1943, No. C 1136, in case of Commonwealth ex rel. Cecelia Fedor v. Joseph Fedor. Order reversed.
Petition for reduction of support order. Before McKIM, P.J.
Order entered reducing amount for support. Relator appealed.
Clyde P. Bailey, with him Bailey Critchfield, for relatrix, appellant.
E.P. Curran, for appellee.
Argued April 26, 1945.
On March 27, 1944, the lower court ordered respondent to pay $80 per month for the support of his wife and their four-year-old child. On February 13, 1945, in the order which is the subject of this appeal, the amount was reduced to $65 per month. Respondent, with overtime, earned an average of $119.59 per week for six months ending January 1, 1945. The net weekly amount received after deductions, including the purchase of war bonds, was $96 for the period. On a showing of reduced earnings to $56 per week during the month of January 1945 the court ordered the reduction.
The wife after the separation went to the home of her brothers where she has been keeping house for them and has maintained a home for herself and her child. The fact that she may shortly receive a moderate amount on the settlement of her mother's estate or that she has some savings of her own in a Postal Savings account has no bearing on respondent's obligation to support her. Com. ex rel. v. Wierczorkowski, 155 Pa. Super. 517, 38 A.2d 347. What is reasonable for the maintenance of the wife and child in the light of respondent's ability to pay determines the proper amount of the order. Com. ex rel. Elgart v. Elgart, 137 Pa. Super. 418, 9 A.2d 202. Eighty dollars per month is not unreasonable in amount and respondent's lowered earnings for the period of but one month prior to the present order does not justify the reduction. Com. ex rel. Binney v. Binney, 146 Pa. Super. 374, 22 A.2d 598. This is especially true because even with his reduced earnings, based on a 40-hour week, respondent still has sufficient ability to pay $80 per month without considering a $500 fee as an executor which he received in January 1945. It costs him about $80 a month to live and the support of his family is his only other responsibility. He makes much of the fact that from his net weekly wage of $56 he receives but $36 because of a deduction of $20 per week to apply on his subscription for war bonds. This is not a factor in determining what he should reasonably pay. Even with patriotism as an excuse, he cannot be permitted to build up an investment in savings for himself at the expense of his wife and child.
There were no changed circumstances which justified the court in reducing the order and in so doing there was a clear abuse of discretion.
Order reversed and the order of March 27, 1944 reinstated as of February 13, 1945.