Commonwealth ex rel. O'Hey v. McCurdy

184 A.2d 291, 199 Pa. Super. 115
Superior Court of Pennsylvania·Decided September 13, 1962·No. Appeal, No. 181·Published·Cited by 23 cases

Opinion

Opinion by

Wright, J.,

This is an appeal by John G. McCurdy from an order of the Court of Quarter Sessions of Montgomery County requiring him to pay the basic sum of $195.00 per week for the support of his four minor children who are presently in the custody of appellant’s former wife, Anne C. O’Hey. See Commonwealth ex rel. O’Hey v. McCurdy, 196 Pa. Superior Ct. 79, 173 A. 2d 672; Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa. Superior Ct. 22, 184 A. 2d 290.

The proceeding had its inception in a petition under the Act of September 26, 1951, P. L. 1494, amending Section 733 of The Penal Code, 18 P.S. 4733. This petition was filed by Anne C. O’Hey and joined in by John G. McCurdy. The court below thereupon directed a preliminary conference before the probation officer, which conference did not result in any agreement. The latter was eventually heard by Judge Honeyman, and the order from which the instant appeal has been taken was entered on February 16,1962. This order provides [118]*118for a weekly payment of $195.00, plus a temporary additional sum of $15.00 per week to cover the tuition and school expenses of the youngest child. For the weeks during which appellant has the children with him, pursuant to his visitation rights, the amount payable under the support order is reduced to $55.00. The facts are summarized in the opinion below as follows:

“The defendant, Mr. McCurdy, has a total separate estate well in excess of $650,000.00. His admitted income after Federal Income Taxes in 1960 was $23,-575.80, and in 1961 was $22,142.27. In 1960 his gross income included an item of salary of $6,878.00 and in 1961 $7,436.00. It would seem rather obvious to the Court that the financial statements he submitted in evidence either do not fully reflect all of his income by way of investment or else the principal of his separate estate is poorly invested or some of the money is nonproductive. $650,000.00 would earn at a rate of 4% gross investment income of $26,000.00 per annum as opposed to investment income which he listed in 1961 at $19,925.72. A Court is not limited to considering a defendant’s admitted income but may also consider the extent of the principal of the defendant’s separate estate. Therefore this Court finds that the defendant has an earning capacity in excess of that which he admits in the testimony and has the ability to pay support greater than that which he asserts he has.

“The four minor subjects of this proceeding also have separate estates consisting of funds in guardians’ accounts, in accounts created under Deeds of Trust, as well as tentative Trust Accounts in a savings bank. The principal of John G. McCurdy, Jr.’s separate estate totals $60,968.00; the principal of Anne C. McCurdy’s separate estate- totals $53,975.00; the principal of Edward G. McCurdy’s separate estate totals $33,973.00; and that of James A. McCurdy, II, totals $31,966.00. It should be noted that $24,000.00 of James’ separate [119]*119estate is held by his father in the form of Government Bonds and no guardian has been appointed for James. No expenditures for the education of James have been or are being made out of his separate estate. However, James along with his brothers, John and Edward, attend a very fine private elementary school, Chestnut Hill Academy. The tuition and incidental school expenses at Chestnut Hill Academy for John, Jr., and Edward are paid out of the income of their separate estates. The only daughter of the parties, Anne, attends Springside School, a very fine and fashionable elementary school for young ladies of social status, and her tuition and school expenses are paid out of the income of her separate estate. The Deeds of Trust for each of the four minor children makes provision for payments out of principal and/or income for their maintenance and education and the father-defendant is a co-trustee under these Deeds of Trust. However, all income under these Deeds of Trust has been left to accumulate as well as the income from the accounts in the savings bank. The school expenses, as aforesaid, have been paid out of the guardians’ accounts for the three oldest children. The father-defendant testified that thé support order should include a sum sufficient to cover the tuition and school expenses of James, since the guardianship has not, as yet, been set up. When, or if, this is accomplished the support order entered in the order following this opinion should be reduced by the sum of $15.00 per week, provided such tuition and school expenses are assumed by the guardian for James. Both Chestnut Hill Academy and Springside School are well-known to the Court and bespeak many words in respect to the matter of station in life of the parties, since they are both rather expensive and fashionable private schools, calling for better than average clothing, more extensive social affairs and all else that goes with attendance at such schools as contrasted with the [120]*120demands attendant upon schooling in our public or parochial schools.

“Mrs. O’Hey, the mother-prosecutrix, is not employed other than as a housewife and has a separate estate of her own worth $17,314.00 from which she derives annual income of approximately $800.00. Otherwise, she is dependent upon the earnings or income of her present husband. In support of her demand for $250.00 per week, exclusive of James’ tuition and school expenses, Mrs. O’Hey testified as to an itemization of the expenses attendant upon rearing these four minor children. Without burdening this opinion with an analysis of these expenditures, suffice it to say that in some details they appear to be excessive but in most particulars they appear to the Court to be realistic. In support of his assertion that $125.00 per week is sufficient, including the tuition and school expenses for James, Mr. McCurdy produced an accountant-prepared analysis of the household expenditures he made for food, clothing and shelter in the years 1957, 1958, 1959 and 1960, after which time the parties separated. Based upon this analysis, he contends that he was able to provide the necessities of life for his four minor children at $1,026.59 per child, exclusive of tuition and school expenses. However, he admitted that this calculation only included those items which he paid by check and did not include cash expenditures, nor monies expended by his then wife while she was married to and living with the defendant, nor any gifts or contributions made by others, particularly the paternal grandmother of these children, who admittedly assisted financially in the maintenance of these children in the form of contributions for the domestic help in the home as well as extensive purchases of clothing for the children. It is also significant to note that the average cost for each child for food, clothing and shelter in 1960 was $1,-[121]*121274.55, not including the above-mentioned items and the cost of medical care for the four children”.

It is conceded in appellant’s brief that his liability for support is not in dispute. Nor is any question raised concerning the temporary additional payment for the youngest child. Appellant’s contentions on this appeal may be condensed and summarized as follows, first, that the court below applied improper standards and entered an order which was unreasonable under the circumstances; second, that no payment whatever should be required for the weeks during which appellant has the children with him.

The applicable legal principles are well settled.

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Commonwealth ex rel. O'Hey v. McCurdy, 184 A.2d 291, 199 Pa. Super. 115 (Pa. Ct. App. 1962).

184 A.2d 291 (Commonwealth ex rel. O'Hey v. McCurdy) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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