Commonwealth ex rel.Sosigian v. Sosigian, 202 Pa. Super. 188, 190, 195 A.2d 883 (1963). A hearing judge may properly conclude that there is competent, credible evidence that husband's earning capacity is greatly in excess of that reflected by his present income: Commonwealth ex rel. Glener v. Glener, 173 Pa. Super. 108, 94 A.2d 102 (1953). This is especially true where it appears that appellant voluntarily left his position with an extreme reduction in pay.
There is no question that the appellant's earning capacity is not reflected by his present status. See Commonwealth ex rel. Glener v. Glener, 173 Pa. Super. 108, 110, 94 A.2d 102 (1953). Indeed, the trial judge when discussing the $35 order said, "I know that the order should be higher than that because he has the earning ability, the capacity to earn more," and at another time, said: "Of course, this man can go out and get a job tomorrow, but the kind of a job he can get tomorrow would not warrant him paying more than the amount of money in the temporary order that I made. I would like to see this man get a job commensurate with his ability to earn, his capacity to earn.
Under such circumstances, the obligation to support his wife may be predicated on this ground alone. See Commonwealth v. Sgarlat, supra; Commonwealthex rel. Davidoff v. Davidoff, 178 Pa. Super. 549, 115 A.2d 892; Commonwealth ex rel. Glener v. Glener, 173 Pa. Super. 108, 94 A.2d 102. The order for support of the wife and child is not excessive. The evidence clearly disclosed appellant to be a successful practitioner.
In such situation, the husband must support and maintain the wife commensurate with his financial ability. See Commonwealth exrel. Davidoff v. Davidoff, 178 Pa. Super. 549, 115 A.2d 892; Commonwealth ex rel. Glener v. Glener, 173 Pa. Super. 108, 94 A.2d 108. Appellant testified that during 1955 he had a gross income of $21,720.68. His net profit from business investments and from his profession amounted to $19,749.13. This net figure included several thousand dollars in depreciation.
Commonwealth v. Surovitz, 148 Pa. Super. 342, 25 A.2d 761." See also Com. ex rel. Glener v. Glener, 173 Pa. Super. 108, 110, 94 A.2d 102. A subsequent petition to vacate an order of support is not a substitute for an appeal, and cannot bring up for review the court's discretion in making the first order. Com. ex rel.Skulsky v. Skulsky, 168 Pa. Super. 635, 637, 82 A.2d 312.
She has not prosecuted the action further. Even where a separation is consensual the right of the wife to support continues ( Com. ex rel. Glener v. Glener, 173 Pa. Super. 108, 94 A.2d 102) unless the husband in good faith withdraws his consent by seeking the return of his wife looking toward a resumption of the family relation. Commonwealth v. Sincavage, 153 Pa. Super. 457, 34 A.2d 266. And the fact that the wife has filed a complaint in divorce does not bar her right to support.
Ordinarily, an order of support must be based on the appellant's property, income and earning ability at the time of the hearing: Com. ex rel. Simmler v. Simmler, 134 Pa. Super. 339, 4 A.2d 215; Com. ex rel. Binney v. Binney, 146 Pa. Super. 374, 22 A.2d 598. However, the court is not restricted to a husband's actual earnings as the sole basis of a support order, but is entitled to consider also his earning power: Com. ex rel. Glener v. Glener, 173 Pa. Super. 108, 94 A.2d 102. This is particularly true where there may be some question as to the husband's good faith: see Com. ex rel.Barker v. Barker, 160 Pa. Super. 263, 50 A.2d 739.