Weiser v. Weiser

• Decision Date: 29 March 1976
• Citation: 238 Pa.Super. 488,362 A.2d 287
• Parties: Norma Rae WEISER, Appellant, v. Gerald J. WEISER.
• Court: Pennsylvania Superior Court

362 A.2d 287

238 Pa.Super. 488

Norma Rae WEISER, Appellant, v. Gerald J. WEISER.

Superior Court of Pennsylvania.

March 29, 1976.

Norman Perlberger, Marvin Comisky Philadelphia, for appellant.

Paul Matzko, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

WATKINS, President Judge.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Family Division, in which the court below directed the defendant-appellee, Gerald J. Weiser, to pay to the wife, Norma Rae Weiser, the appellant, the sum of $150 per week for the support of the wife and three children.

The position of the wife in this appeal is that the court's order is inadequate because the court failed to take into consideration the husband's earning potential and the standard of living to which he had acclimated the family.

The husband is a patent lawyer who had been employed in the law firm of Dechert, Price and Rhoads at a yearly salary of about $40,000.00. In March, 1973, the husband terminated his employment at Dechert, Price and Rhoads and went into practice on his own, eventually forming his own partnership with two other attorneys. His earnings from the new employment at the time of the hearing was $340.00 per week.

The parties were married April 15, 1951. The husband moved out of the family home on July 4, 1973. The three children of the marriage were 20, 18 and 16 years of age and remained with the wife. Two of the children are presently enrolled in college while the youngest is a student at a private boarding school. The wife has a separate income of $10,000.00 a year. At the hearing before the court below the wife presented evidence that tuition and expenses of the children's education amounted to $16,715.00 per year and the household expenses amounted to over $20,000.00 per year. We are not convinced that this is not exaggerated, expecially the household expenses.

This Court's review of support orders is limited to a determination of whether there is evidence to support the order and if so, the order will be reversed only if there has been an abuse of discretion. Commonwealth ex rel Goichman v. Goichman, 226 Pa.Super. 311, 316 A.2d 653 (1973).

Appellate courts are becoming more reluctant to substitute themselves as supersupport courts when they have not had the opportunity to see and hear the witnesses and so determine credibility. We are mindful of the rule which provides that it is the earning potential of the father which is the determinative factor in ascertaining the ability to pay support to the family rather than the actual earnings. Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Super. 226, 199 A.2d 512 (1964).

It is undisputed that a father or husband cannot intentionally reduce his actual earnings and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family. Courts have traditionally viewed with suspicion any sudden reduction of the support payments based on such income reductions. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965).

Be that as it may, we are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income.

The court below in a very detailed and carefully reasoned opinion had this to say:

'Counsel for petitioner in arguing that defendant's former salary should control submitted precedents in which a defendant either intentionally left a lucrative position and thereby drastically reduced his earnings, intentionally kept his earnings to a minimum, or asserted a reduced income out of proportion to the amount he appeared to be spending. Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Superior Ct. 247 (311 A.2d 701) (1973) (lower court found that defendant's testimony was incredible and that his reduction in income was intended to defeat his wife's claim to support); Commonwealth ex rel. Snively v Snively, 206 Pa.Superior Ct. 278 (212 A.2d 905) (1965) (defendant voluntarily quit his job and went to college, virtually eliminating his income and taking on a financial burden in the form of school expenses); Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Superior Ct. 226 (199 A.2d 512) (1964) (a pharmacist with post graduate degrees had an earning potential far greater than the amount he made in a local pharmacy); Commonwealth v. Trimble, 197 Pa.Super.Ct. 644 (180 A.2d 92) (1962) (defendant made an insufficient effort to obtain employment and deliberately withdrew from income producing work); Commonwealth ex rel. Kane v. Kane, 193 Pa.Super.Ct. 98 (163 A.2d 925) (1960) (defendant's standard of living belied his claim to a very low income); Commonwealth ex rel. Wieczorkowski v. Wieczorkowski, 155 Pa.Superior Ct. 517 (38 A.2d 347) (1944) (son contributed his services to parent for his board and keep). In such situations the courts have indicated that the husband's earning potential should be the basis for the support order.

'However, in the instant case, there was no indication that Mr. Weiser struck out on his own so as to defeat his family's right to support. In fact he began his new association several months before he was separated from Mrs. Weiser. There was no evidence that he was concealing income or that his standard of living was inconsistent with his claimed earnings. Moreover, the amount he was drawing was not inconsiderable.

'A case which is more on point is Shaffran v. Shaffran, 92 Montg.Co.L.R. 339 (1969), affd. 217 Pa.Superior Ct. 856 (270 A.2d 251) (1970). This case involved a husband who left a job in an advertising agency, where his monthly income was $1350, to form his own agency. His monthly income for the first year was about half his former income but it increased in successive years so that at the time of the court's decision, he was earning about $986. The court found that the change was not made to deliberately reduce his income but for the purpose of avoiding a limited future in the former agency and with the hope of increased future earnings. The court entered a support order averaging about 62% Of his current income for the maintenance of his wife and two children. The wife wanted the order to be based on his past income. The Court stated that '(a) support order should not be based on the husband's past earnings, if it would be unreasonable to do so in light of present circumstances.' Id. at 341. See also, Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa.Superior 364 (292 A.2d 502) (1972).

"The Court may ordinarily only make support orders based upon a husband's property, income and earning ability At the time of the hearing, not on what they have been in the past.' Commonwealth v. Testa, 226 Pa.Superior Ct. 585, 588 (323 A.2d 199) (Advance Reports, 1974). Accordingly, based upon Mr. Weiser's earning ability at the time of the hearing the award in the present case was approximately one half of Mr. Weiser's spendable income after taxes. 'Although there is no rule which says that an award for a wife and children may not exceed one half of the husband's income, it must not nevertheless impose an unreasonable burden on him.' Commonwealth ex rel. Lipsky v. Lipsky, 214 Pa.Superior Ct. 215 (251 A.2d 729) (1969).

'Mr. Weiser had considerable expenses. His rent was $58.50 weekly; his car payments were $33.00 per week. He alleged that he spent $60.00 per week on food, about $5 per week on clothing, $7.50 for Blue Cross and Blue Shield for the entire family, totalling $164.00, plus additional amounts for other need. In all he alleged the total of his weekly expenses and outstanding bills ^[2] to be $587.70.

No matter how inflated that figure might have been, it was clear that he was in need of at least $165 taking into account the amounts specifically listed above, additional expenses and his debts. This figure when added to the support order of $150.00 totals $315.00, which could well be the net remainder after taxes are deducted from his earnings of $400 per week in 1973, and unquestionably when deducted from his draw of $340 at the time of the hearing.

As we said in Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973): 'It seems certain that appellee (wife) and her children are quite capable of spending any sum appellant (husband) is ordered to provide for them.'

However, in this case, as pointed out by the court, his change of employment came before the separation so that it is contended that it was not for the purpose of reducing the income of the family on separation. As he was a lawyer, we are not so naive as to believe that support payments may not have been anticipated by him. Another disturbing factor is that he continued his own standard of living as if he was receiving the income to which he had been accustomed and which was clearly extravagant in relation to his current income. This is illustrated by the fact that he took three expensive vacations since the separation and continued his life style.

Appellee's change in employment resulted in an income reduction of more than one half. It is also a fact that as a partner in the law firm he could control the draw and his weekly income of $340 may not accurately reflect his new earnings. It is for these reasons that we feel the award is inadequate. Most certainly he has the right to establish his own business but not at the expense of his family whose life style he created...