Commonwealth v. Kramer , 80 Pa. Super. 210 ( 1922 )

Opinion by

Keller, J.,

In our opinion this order cannot be sustained under the evidence, and must be modified.

Taking the books of defendant’s employers, S. Kramer & Co., which were produced under the Commonwealth’s subpoena, in the light most unfavorable to the defendant, and with every intendment1 against him, we are unable to find that his salary, including both what he received in cash and what was credited to his account in the books was more than $70 a week. If he had any interest in the profits of the business, over and above his salary, it was at most a third, and the evidence failed to show that he was on this account entitled during the year 1921., to more than one-third of $500, if that much. We are not directly concerned in this proceeding with the profits made by the establishment in 1919 and 1920, before defendant’s marriage with relatrix. It is his present property and income in which we are interested: Lynn v. Lynn, 68 Pa. Superior Ct. 324. It was not shown that he had any property or sources of income other than his salary from, and interest, if any, in, the firm, or profits, of S. Kramer & Co.

We are satisfied from the evidence that his income is not in excess of $75 per week and by analogy to awards of alimony, he should not1 be required to pay for the support of his wife more than one-third of that amount: McClurg’s App., 66 Pa. 366; Lynn v. Lynn, supra.

The testimony of the relatrix and her father as to the declarations of defendant and his father, with respect to the former’s salary, cannot be allowed to prevail against the evidence of the books, which we are satisfied represented conditions truly and were not doctored in any manner because of these proceedings. In these circumstances an award of $50 a week to the relatrix was a clear abuse of discretion not' sustained by the evidence and cannot be allowed to stand.

The order of the court below is modified and it is now ordered that the defendant pay to his wife, Bertha M. Kramer for her support, the sum of $25 per week from the 14th day of July, 1922, and give bond, or enter into a recognizance, with security to be approved by the Municipal Court of Philadelphia County, or a judge thereof, in the sum of one thousand dollars for the faithful performance of this order and pay the costs in the court below and stand committed until the order is complied with.

Costs on this appeal to be paid by the appellee relatrix.