Commonwealth ex rel. Goichman v. Goichman

316 A.2d 653, 226 Pa. Super. 311, 1973 Pa. Super. LEXIS 1360
CourtSuperior Court of Pennsylvania
DecidedSeptember 19, 1973
DocketAppeal, No. 556
StatusPublished
Cited by33 cases

This text of 316 A.2d 653 (Commonwealth ex rel. Goichman v. Goichman) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Goichman v. Goichman, 316 A.2d 653, 226 Pa. Super. 311, 1973 Pa. Super. LEXIS 1360 (Pa. Ct. App. 1973).

Opinion

Opinion by

Spaulding, J.,

Appellant William Goichman appeals from an order of Judge John R. Henry of the Court of Common Pleas of Montgomery County directing him to pay $325 a week for the support of his three children.

Appellant, a Philadelphia attorney, and his wife have been separated for four years. Their children are presently 11, 13 and 15 years of age, and reside with the mother in the family home in Jenkintown, Pennsylvania. In the year of their separation, appellant was ordered to pay $425 per week support to his wife and children, an order affirmed by this Court on appeal. Commonwealth ex rel. Goichman v. Goichman, 219 Pa. Superior Ct. 367, 281 A. 2d 333 (1971). In December, 1971, appellant petitioned for a reduction of that order, and, a month later, petitioned for revocation of support for his wife. After a hearing, the court below terminated the original $425 order and entered the $325 weekly support order for the children only, which is tbe subject of this appeal.

Our review of support orders is limited to a determination of whether there is evidence to sustain the order of the hearing judge. We will reverse such orders only if there has been an abuse of discretion. We must sustain such awards if they can be shown to rest on any valid ground. Commonwealth ex rel. Heineman v. Heineman, 185 Pa. Superior Ct. 32, 137 A. 2d 349 (1958); Commonwealth ex rel. Fishman v. Fishman, 213 Pa. Superior Ct. 342, 247 A. 2d 810 (1968). However, support orders are not to be confiscatory or punitive of the father or husband, and the father is to be left with a, reasonable allowance for his own living expenses. Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa. Superior Ct. 364, 292 A. 2d 502 (1972).

[314]*314Initially, we consider the hearing judge’s finding as to the needs of the Goichman children: “The family had a high standard of living prior to Eespondent’s leaving the marital domicile in 1970; and has continued to live in a comfortable manner since then. This was made possible by Eespondent’s great financial success.

“The expenses of the children, as testified to by Petitioner, exceed Seventeen Thousand Dollars ($17,-000.00) per year. This amount was arrived at by prorating the expenses of the family for common items (i.e., real estate taxes) and adding to this the expenses of the children. Although the amount expended to raise these three children appeared to be considerable, it was substantiated by Petitioner. It must be remembered that it was Eespondent who acclimated them to this standard of living and it is to this standard that Eespondent must be held if he is so able.”

The lower court’s finding of $17,000 of need was predicated on Mrs. Goichman’s presentation of a list of her total 1971 expenditures, prorated for the children’s share. Appellant had introduced a breakdown of Mrs. Goichman’s checking account for a one-year period purporting to show that the amount spent on the children was only slightly in excess of $5,000.1 We will not interfere with the finding of the court below on this point, particularly as it reflects a mere extension of the family’s pre-separation lifestyle, to which appellant had acclimated them. See Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A. 2d 181 (1967).

As to the family’s financial condition, the court below further found that while Mrs. Goichman had been employed during the 1976-1971 period, she was [315]*315unemployed at the time of the hearing. Her temporary source of income was deemed nonrecurrent, the court finding that she was unable to provide support for her children. Ordinarily, the earning capacity of a wife who is able to work should be a relevant consideration and, where equitable, a credit towards the husband’s support obligation. Commonwealth ex rel. Borrow v. Borrow, 199 Pa. Superior Ct. 592, 185 A. 2d 605 (1962). Here, however, as Mrs. Goichman’s termination of employment was related to the health needs of one of her children, we will not disturb the hearing judge’s finding that she had no effective earning capacity to affect appellant’s support liability.

We come, then, to the difficult task faced by the court below of determining Mr. Goichman’s earning capacity. Appellant concedes that Ms children are ea-titled to some measure of paternal support. He argues, however, that while he must abide by the 1969 finding,2 affirmed by this Court, that Ms annual earning capacity was at least $60,000, his income has declined significantly since 1969, warranting a reduction in the order. The court below found: “Although Respondent’s income tax return is usually a help in determining his income and earning capacity, this is not the situation here. The earning capacity of Respondent, after taxes, as determined in 1970 by Judge Ditter, was at least Sixty Thousand Dollars ($60,000.00) per year. There was no reason to assume, and none was shown, that this was not the situation at present.

“Although Respondent alleged a great decrease in earning capacity, there was nothing to substantiate this.

[316]*316“Respondent testified to living expenses of approximately Twenty-nine Thousand Five Hundred Dollars ($29,500.00) per year, wholly exclusive of the support order which he paid at that time. When considering that order, Four Hundred Twenty-five Dollars ($425.-00) per week or Twenty-two Thousand One Hundred Dollars ($22,100.00) per year, the amount of money spent by Respondent in 1971 was Fifty-one Thousand Six Hundred Dollars ($51,600.00).

“Respondent petitioned to reduce the amount of support awarded for his children, while continuing to live in a lavish style. This Court felt that if there was an actual decline in Respondent’s income and assets, a corresponding change would be apparent in Respondent’s life style. However, no change was so manifested.”

More specifically, we can infer that the court below found appellant to have available to him over $50,000 a year, as it found that the $16,900 support represented “one third of his spendable income”.

In determining the propriety of such awards, we are concerned with the father’s overall ability to pay the amount of the order. This requires the determination of his “bona fide earning power” and not necessarily “income” as represented on a tax return. In this connection, the earning potential of the husband is to be considered part of his earning power. Hecht v. Hecht, 189 Pa. Superior Ct. 276, 150 A. 2d 139 (1959); Fishman, supra. “The net income of a defendant as shown on income tax returns is not to be accepted in a support case as the infallible test of his earning capacity. Particularly is this true when the defendant is in business for himself and is allowed substantial business ‘expenses,’ which enable him to live luxuriously before spending his taxable income.” Commonwealth v. Miller, 202 Pa. Superior Ct. 573, 577, 198 A. 2d 373, 375 (1964).

Appellant’s major support for his contention of reduced income consisted of his income tax returns for [317]*317the relevant years, 1970 and 1971. He asserts that these show an earning capacity of $12,530 and $19,700 respectively.3 The court below refused to lend any credence to this argument. Giving considerable weight to the hearing judge’s credibility findings, we concur in his refusal to rely on tax returns.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perlberger v. Perlberger
626 A.2d 1186 (Superior Court of Pennsylvania, 1993)
Sherrill v. Sherrill
831 S.W.2d 293 (Court of Appeals of Tennessee, 1992)
Coffey v. Coffey
575 A.2d 587 (Supreme Court of Pennsylvania, 1990)
Sutliff v. Sutliff
489 A.2d 764 (Supreme Court of Pennsylvania, 1985)
Cross v. Cross
456 A.2d 214 (Superior Court of Pennsylvania, 1983)
Boni v. Boni
448 A.2d 547 (Supreme Court of Pennsylvania, 1982)
Commonwealth Ex Rel. Buchakjian v. Buchakjian
447 A.2d 617 (Supreme Court of Pennsylvania, 1982)
Commonwealth Ex Rel. Simpson v. Simpson
430 A.2d 323 (Superior Court of Pennsylvania, 1981)
Smith v. Smith
426 A.2d 1184 (Superior Court of Pennsylvania, 1981)
Commonwealth Ex Rel. Caswell v. Caswell
421 A.2d 762 (Superior Court of Pennsylvania, 1980)
Brown v. Brown
38 Pa. D. & C.3d 492 (Chester County Court of Common Pleas, 1980)
Commonwealth Ex Rel. Cragle v. Cragle
419 A.2d 1179 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Goodyear
411 A.2d 550 (Superior Court of Pennsylvania, 1979)
Commonwealth Ex Rel. Armor v. Armor
398 A.2d 173 (Superior Court of Pennsylvania, 1978)
Commonwealth v. Turner
392 A.2d 848 (Superior Court of Pennsylvania, 1978)
Commonwealth Ex Rel. Giamber v. Giamber
386 A.2d 160 (Superior Court of Pennsylvania, 1978)
Wechsler v. Wechsler
363 A.2d 1307 (Superior Court of Pennsylvania, 1976)
Commonwealth Ex Rel. Levy v. Levy
361 A.2d 781 (Superior Court of Pennsylvania, 1976)
Weiser v. Weiser
362 A.2d 287 (Superior Court of Pennsylvania, 1976)
Commonwealth ex rel. Caplan v. Caplan
346 A.2d 822 (Superior Court of Pennsylvania, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
316 A.2d 653, 226 Pa. Super. 311, 1973 Pa. Super. LEXIS 1360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-goichman-v-goichman-pasuperct-1973.