Hecht v. Hecht
| Decision Date | 16 April 1959 |
| Parties | Jean B. HECHT, Appellant, v. Richard E. HECHT. |
| Court | Pennsylvania Superior Court |
Michael A. Foley, Philadelphia, for appellant.
Thomas M. Garrity, Raymond Pearlstine, Norristown, for appellee.
Before RHODES, P. J., and HIRT, WRIGHT, WOODSIDE, ERVIN and WATKINS JJ.
This is an appeal by the mother of two children from an order entered against her former husband for the support of the children. She thinks the amount of the order is too low. So do we.
Both parties grew up in the Philadelphia area enjoying the advantages which money can give children,--beautiful homes, summer camps and private schools. They married in February 1946. Two children, Joan now ten years old, and Richard, Jr., now eight years old, were born to the marriage. While living together in Baltimore they had a full-time maid, and a governess for their children.
Unfortunately at least for the children, luxury did not bring happiness to Richard and Jean Hecht, and they separated in December 1951 executed a separation agreement in February 1952, and were divorced April 15, 1952. The father remarried in 1955, and is presently residing in Florida with his wife, their child and her two children by a former marriage. The mother has not remarried, and resides in a three bedroom apartment in Lynnwood Gardens, Ellkins Park, Montgomery County with the two children.
Under the separation agreement, Jean received approximately $25,000 and the furniture from Richard. It was agreed that the children should remain in the custody of the mother, and that the father should pay the mother $325 per month for the support of the two children, and also pay for certain medical and educational expenses. As the children grew older, the mother thought they should have separate rooms, and the father voluntarily raised his monthly payments from $325 to $350 per month to cover the increased rent of a larger apartment.
Some of the children's medical expenses have been paid by each of the parties. Twice a year the father pays for the children to fly to Florida for a visit with him. He has paid approximately $300 for the children's day camp. [1]
At the time of the separation agreement the father's earned income was approximately $12,000 a year and he had assets of approximately $100,000. The children were then 2 and 4 years of age.
The father does not question his liability to support his children. The mother's agreement is not a bar to the rights of a minor child for support in accordance with the standards established by law. Commonwealth v. Beavin, 1950, 168 Pa.Super. 73, 75, 76 A.2d 653; Commonwealth ex rel. Rey v. Rey. 1946, 159 Pa.Super. 284, 285, 48 A.2d 131.
Since the separation agreement was signed, the defendant has inherited nearly a half million dollars from various estates. The exact present value of the defendant's estate is difficult to ascertain from the record, but it appears to be in excess of $600,000. The court found that for 1958 the defendant's unearned income was approximately $25,000 'with no foreseeable earned income.' The defendant invested $175,000 in what he refers to as 'a speculative venture in Florida' involving the conversion of C-46 wartime aircraft. He is devoting his full time to this venture. The defendant's present wife has an income of $3,000 per year, but is not receiving any funds from her former husband for the support of their two children.
The mother has an income of approximately $5,000 per year from a trust created for her by her father. She had been employed at a salary of approximately $4,000 per year.
The mother testified that she would like to send the children to the summer camps in Maine which she and their father had attended, and which would cost approximately $2,000 for the two of them. She said she would also like to give them music lessons, dancing lessons and dramatic lessons, and that their teeth need straightening which will involve an expenditure of about $850 for each child. The father is willing to pay for a summer camp in Florida at a cost of approximately $1,000, but thinks the camp in Maine is too expensive. The mother thinks the children should go to the Maine camps because of better summertime weather, because the children's cousins and friends go there, because the children know the camp officials there, and because both she and their father went there.
The separation agreement can be considered as some indication that $325 was believed by the parents at the time of the agreement to be a fair sum for the children's support. As the agreed payment is for the support of children only, it was not then, and is not now, binding upon the court. Were the present payment of $350 per month made under an order of court, the petitioner would have the burden of showing that circumstances had changed between the time of the order and the time of the hearing on the petition, but as the payments were being made under an agreement, the question in this case is what order should the court impose in the light of present circumstances. The agreement, however, can be considered, along with all the other circumstances, in determining the amount of the present order.
We might properly consider among other things: (1) that the cost of living is some higher now than it was when the agreement was made, (2) that it is more expensive to feed, clothe and educate children 8 and 10 years of age than children 2 and 4 years of age, and (3) even more important, the substantially improved inancial condition of the father. On the other hand, considering his earnings, his assets and the age of the children, the sum the defendant agreed to pay was fairly liberal, and from this we can assume that some consideration was given to the increased cost of child maintenance which accompanies growing up.
No two support cases are ever alike. Circumstances, although similar in some respect, may differ materially in other respects. It is for the court to consider all the circumstances. It is difficult for an appellate court to state rules equally applicable to all cases. This case is unusual because of the wealth of the parents.
Generally we will not disturb a support order unless there is a clear abuse of discretion by the court below in fixing the amount. Commonwealth ex rel. Long v. Long, 1956, 181 Pa.Super. 41, 43, 121 A.2d 888, or unless it is clear that the order is based on a misinterpretation of the law.
The purpose of a support order is to determine a reasonable allowance for the support of the children, always having in mind the property and earning capacity of the father and the station in life of the parties. Commonwealth v. Wingert, 1953, 173 Pa.Super. 613, 98 A.2d 203.
The court below set the amount of the order the $400 per month. It gave no consideration to the assets of the father, nor to his earning capacity, basing the order upon an unearned income of $25,000 per year.
If there is one rule regarding support orders which is firmly established, it is that the court is not restricted to the defendant's actual earnings, but should also consider his earning power. Commonwealth ex rel. Long v. Long, supra. As stated in Commonwealth ex rel. Orlowitz v. Orlowitz, 1953, 172 Pa.Super. 481, 483, 94 A.2d 366, 367, 'income is not the sole basis for action of the court; the defendant's potential earning power and his capital assets are relevant and, sometimes, controlling factors.'
Here the father is 34 years old, and admits his earning power is between $10,000 and $15,000 per year. The court was in error in basing the order solely on the defendant's unearned income, and in saying, 'We have no right to add thereto his so-called earning power.'
In considering the defendant's ability to pay, not only the amount shown to be actually received by him, but also all the attendant circumstances of the case must be borne in mind. Commonwealth v. Elliott, 1945, 157 Pa.Super. 619, 622, 43 A.2d 630. It is proper to consider the nature and extent of all the defendant's property and financial resources. Commonwealth v. Surovitz, 1942, 148 Pa.Super. 342, 347, 25 A.2d 761.
The father is under a duty to support his children, taking into account their needs, his property, his income, his earning ability and the condition in life of the parties. Commonwealth v. George, 1948, 358 Pa. 118, 123, 56 A.2d 228; Jones v. Jones, 1944, 348 Pa. 411, 416, 35 A.2d 270; Commonwealth ex rel. Rey v....
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