Com. ex rel. Tizer v. Tizer

• Decision Date: 13 June 1969
• Citation: 257 A.2d 683,214 Pa.Super. 444
• Parties: COMMONWEALTH ex rel. Mildred TIZER, Appellee-Appellant, v. William TIZER, Appellant-Appellee.
• Court: Pennsylvania Superior Court

Page 683

257 A.2d 683

214 Pa.Super. 444

COMMONWEALTH ex rel. Mildred TIZER, Appellee-Appellant, v. William TIZER, Appellant-Appellee.

Superior Court of Pennsylvania.

June 13, 1969.

Petition for Allowance of Appeal Denied Dec. 1, 1969.

Sideny M. DeAngelis, Bean, DeAngelis, Tredinnick & Giangiulio, Norristown, for appellant.

Samuel Kagle, Oscar Brown, Philadelphia, Jack A. Rounick, Norristown, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge.

This case comes to us on appeal from an Order of the Court of Quarter Sessions of Montgomery County dated November 6, 1968, effective July 18, 1968, directing William Tizer to pay his wife nine hundred ($900.00) dollars per month for her support and to replace her automobile with a new model. Both sides appealed the Trial Court's decision.

The parties were married in 1942 and have three sons, the oldest is twenty-four years of age and a college graduate, the middle child is nineteen and the youngest thirteen years old. Mr. Tizer is approximately forty-eight years of age and Mrs. Tizer is approximately forty-six. Mr. Tizer is in the floor covering business, operating under the name of Royal Tile Company.

Following their marriage, the parties lived together continuously for twenty-two years. Then, in 1964 and again in 1965, Mr. Tizer separated from his wife for two short periods. On March 14, 1966, Mr. Tizer separated himself a third time from his wife and set up separate living quarters. Mrs. Tizer filed a Petition for Support and, after hearings beginning October 18, 1966, the Court on March 22, 1967 ordered Mr. Tizer to pay to his wife the sum of two hundred and thirty ($230.00) dollars per week for her support and the support of their two minor children and to replace her 1964 automobile with a new model.

Prior to that initial hearing of October 18, 1966, counsel for Mrs. Tizer served on Mr. Tizer a subpoena duces tecum to produce certain documents regarding his personal and corporate financial affairs. At this hearing, however, counsel for Mr. Tizer succeeded in prevailing upon the Court that it was not necessary to make such a financial inquiry since his client was willing to pay his wife any amount the Court ordered based upon her needs. That Order of March 22, 1967 was never vacated and remained in effect although William Tizer returned to the family residence on May 12, 1967, thus ending the third separation of fourteen months duration.

In March of 1968, while the parties were still living together, William Tizer filed a Petition to vacate the Order of March 22, 1967. Mrs. Tizer filed an Answer to this Petition, asserting that the Order should not be vacated, and also filed a Cross-Petition to increase the original Order. Hearings on these Petitions were held before the Honorable Judge Vogel beginning in May of 1968, while the parties were still living together. On May 27, 1968, two weeks after the trial began, Mrs. Tizer left the marital domicile and the hearings continued throughout the better part of 1968 resulting in the Order of November 6, 1968 of nine hundred ($900.00) dollars per month and a new model automobile, from which both parties appealed.

The Appeal of Mildred Tizer is based on two contentions: (1) that the Trial Court erred in not inquiring into her husband's income and assets before entering the support order; and (2) that the Trial Court abused its discretion in not awarding an amount of support based on the high standard of living to which the parties were accustomed prior to their separation.

The Appeal of William Tizer is based on several grounds: (1) that the Trial Court should have decided the ultimate support award de novo without reference to evidence in the original 1966 hearings which resulted in the March 22, 1967 Order of two hundred thirty ($230.00) dollars per week for wife and children plus a new automobile, since he had resumed the family relationship between the date of that Order and the Order of November 6, 1968, directing payment to Mrs. Tizer of nine hundred ($900.00) dollars per month and a new automobile; (2) that his wife did not have adequate legal grounds to separate from him and thus is not entitled to support; and (3) that the Court lacked jurisdiction to compel him to replace his wife's automobile.

We must agree with the first contention of the wife that the trial court erred in not inquiring into the income and assets of her husband before determining the amount of the November 6, 1968 Support Order. This Court has repeatedly stated that the purpose of a support order is to secure such an allowance to the wife and/or children as is reasonable, having in mind the husband's property and earning capacity and the station in life of the parties. Markley v. Markley, 207 Pa.Super. 294, 218 A.2d 84; Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135; Commonwealth ex rel. Kallen v. Kallen, 200 Pa.Super. 507, 190 A.2d 175; Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291; Commonwealth ex rel. Warner v. Warner, 194 Pa.Super. 496, 168 A.2d 755. The husband's ability to pay or capacity to earn is an important criterion in the determination of the amount of support to be paid. Commonwealth ex rel. Mass v. Mass, 170 Pa.Super. 545, 87 A.2d 793. In a very recent case of Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1968), the Supreme Court stated that:

'The function of a court in a proceeding for support is not to punish a husband for misconduct but to fix an amount which is 'reasonable and proper for the comfortable support and maintenance of * * * (his) wife.' Commonwealth ex rel. Milne v. Milne, 150 Pa.Super. 606, 29 A.2d 228. In determining the appropriate amount of the order the court is not restricted to the husband's actual earnings, but may also consider his earning power, McMahon v. McMahon, 167 Pa.Super. 51, 74 A.2d 718, Commonwealth v. Gleason, 166 Pa.Super. 506, 72 A.2d 595; and the nature and extent of his property and other financial resources, Commonwealth ex rel. Rankin v. Rankin. 170 Pa.Super. 570, 572, 87 A.2d 799.'

An accurate determination of a husband's ability to pay is often difficult for a court to achieve. Many times the evidence pertaining to this phase of a support case is based on probabilities and eventualities and the court is left with the unenviable task of attempting to make a fair estimate of the husband's ability to pay. But, where there is evidence of ability to pay, the court can predicate a support order upon it. In the instant case, however, no testimony concerning the husband's earnings, earning capacity and assets was received in evidence, and the order of support could only have been premised on a conjectured ability to pay. This procedure, if allowed to be considered as a...