Commonwealth ex rel. Spielvogel v. Spielvogel

• Decision Date: 11 April 1956
• Citation: 181 Pa.Super. 61,121 A.2d 886
• Parties: COMMONWEALTH ex rel. Rosalle spielvogel v. Joseph SPIELVOGEL, Appellant.
• Court: Pennsylvania Superior Court

121 A.2d 886

181 Pa.Super. 61

COMMONWEALTH ex rel. Rosalle spielvogel v. Joseph SPIELVOGEL, Appellant.

the Superior Court of Pennsylvania

April 11, 1956

Argued March 19, 1956

Appeal, No. 297, Oct. T., 1955, from order of Municipal Court of Philadelphia County, No. 193102, in case of Commonwealth ex rel. Rosalie Spielvogel v. Joseph Spielvogel.Order affirmed.

Support proceeding.Before GILBERT, J.

Order entered directing husband to pay stated weekly amount for support of wife and children.Defendant appealed.

Order affirmed.

Samuel Moonblatt, with him Gabriel Berk, for appellant.

David Kanner, for appellee.

Before HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.(RHODES, P.J., absent).

OPINION

WRIGHT, J.

This is an action by Rosalie Spielvogel against her husband, Joseph Spielvogel, in which the wife seeks support for herself and two minor children, Roberta, born December 5, 1941, and Michael, born February 1, 1945.Following a hearing, at which the only testimony was that of the parties themselves, the lower court entered an order in the sum of $75.00 per week.The husband has appealed.

The sole question involved is the amount of the order.The wife asked for $100.00 per week, whereas appellant's counsel suggests in his brief "that an order for $44.00 per week would be just".The parties were married on August 31 1940, and separated on or about April 15, 1955.The husband works at the Golden Slipper Club in New York City.He contends that he is merely an employe receiving $100.00 per week.The wife contends that her husband is one of the owners, not only of the club in New York but also of a similar club in Philadelphia.Prior to the separation, the husband gave his wife $100.00 per week and paid certain household bills.In addition the wife received $50.00 for part time work at the Philadelphia club.The wife testified that her husband told her that he was earning $400.00 per week.Further that, during a conference concerning a property settlement, he offered to pay her $100.00 per week, and to make the payments of $58.00 a month on the dwelling mortgage.Following the separation the wife was compelled to secure employment and is presently earning $40.00 per week.In his OPINION below, Judge GILBERT states that he was not impressed with appellant's testimony, and that it would be "straining credulity too far" to accept his story that, for some unexplained reason, his financial means took a sudden drop coincidental with the separation.

In a support proceeding the appellate court will not interfere with the determination of the court below unless there has been a clear abuse of discretion: Davidsen v. Davidsen,175 Pa.Super. 123, 103 A.2d 296.The court is not restricted to a husband's actual earnings, but is entitled also to consider his earning power, and this is particularly true where there may be some question as to the husband's good faith: Commonwealth ex rel. Schofield v. Schofield,173 Pa.Super. 631, 98 A.2d 437.The case at bar is similar in many respects to that of Commonwealth v. Williams,178 Pa.Super. 313, 116 A.2d 297 in which we affirmed an order of $75.00 a week for a wife and two children, although the husband adduced evidence that he was earning only $85.00 per week.

Appellant stresses the fact that most of his testimony was given when he was called as of cross-examination by his wife's counsel.He therefore contends that his testimony "must be held to be binding upon the wife", citing Readshaw v. Montgomery,313 Pa. 206, 169 A. 135;Conley v. Mervis,324 Pa. 577, 188 A. 350;andPetersv. Shear, 351 Pa. 521, 41 A.2d 556.These cases are authority for the proposition that a party calling his opponent as for cross-examination is concluded by his testimony if uncontradicted.Whether or not this general rule applies to parties in a nonsupport proceeding, it is subject to...