Betz v. Betz , 70 Pa. Super. 396 ( 1918 )

Opinion by

Porter, J.,

This is an action brought by a wife against her husband for divorce from bed and board on the ground of adultery, and for alimony. The court below referred the case to a master, who, after taking testimony, recommended a decree granting a divorce to the libellant from the bed and board of the respondent, and ordering the respondent to pay to the libellant the annual sum of $30,-632, in monthly payments, for her support and maintenance. The court below approved the report of the master and entered a decree of divorce a mensa et thoro, but sustained exceptions to the amount of alimony recommended by the master and fixed the alimony to be paid by -the respondent at $2,250 per month, that is $27,000 per year. The respondent appeals from that decree. The evidence produced by the libellant fully established the adultery of the respondent. This dispute is over the amount of alimony that should be allowed.

The evidence established that the respondent’s property, real and personal, was worth about $2,000,000, a considerable part of said property being unproductive, and that his income during the year 1916 was $91,897.83, a large part of which income was derived from the operations of the Betz Brewing Company. The amount which the master recommended should be awarded the libellant each year as alimony, was practically one-third of the entire income of the respondent. The report of the master clearly shows that, in fixing this amount, he assumed that the court was vested with authority to punish the respondent for his misconduct, and that alimony was to be awarded upon the principle that the wife was entitled to one-third of her husband’s income. We are of opinion that in each of these positions the learned master was in error. The law of Pennsylvania does not vest the Courts of Common Pleas with authority to punish a defendant for the crime of adultery, that jurisdiction is vested in another tribunal.- Alimony is an allowance made to a wife, upon a decree of divorce, for maintenance, support and supply. The law does not contemplate, that under the guise of an allowance of alimony, a portion of the estate of a husband shall be taken from him and given to his wife. This libellant is not seeking a dissolution of the marriage relation but the right to live apart from her husband. The allowance of alimony, in such a case, is based upon the existence of the marriage relation, the ability of the husband and the necessities of the wife. The foundation upon which the right of alimony is based is the right of the wife to such support from her husband as she would be reasonably entitled to expect from a man in his position financially. In several of the English cases which led the master to conclude that the wife should be allowed one-third of her husband’s income, the courts gave weight to the circumstances that the husband had originally received through his wife, .upon their marriage, the property from which the income was derived. That is a consideration which can have no weight in Pennsylvania; the Act of April 11, 1862, P. L. 430, which is a supplement to the Act of February, 26,1817, 6 Smith’s Laws 405, makes express provision with i*egard to the income derived from such property. As the marital relation is to be continued between these parties, the principles to be applied in the ascertainment of a widow’s dower, or the statutory substitute for her right of dower, can have no application. The Act of February 26, 1817, as amended by the Act of 1862 authorized the court, in such a case as this, to allow the wife such alimony “as her husband’s circumstances will admit of, so as the sum do not exceed the third part of the annual profit or income of his estate, or of his occupation and labor; which shall continue until a reconciliation, &c.” This legislation did not change the nature of the allowance to be made nor the principles upon which the amount thereof should be ascertained; the one-third of the income was fixed as the maximum of alimony; McClurg’s App., 66 Pa. 366.

The station in life of the parties, the manner in which they have lived and the income of the husband, may all very properly be taken into consideration in determining the amount of alimony which should be paid. If, however, the income of the husband has been very large, the mere fact that he has spent all of it, no matter how foolishly, is no reason for holding that the wife should receive, as alimony, one-third of the entire income, to spend in an equally extravagant manner. What she is entitled to is an allowance sufficient to maintain her in a manner reasonably warranted by the station in life and financial resources of her husband. It is true that in many cases in Pennsylvania approximately one-third of the income of the husband has been decreed to the wife as alimony, but in all of such cases the income of the husband was not very large. When the income is small a larger proportion of it is reasonably necessary for the maintenance of the wife. This principle is illustrated in MacQueen’s Law of Divorce, thus: “A fifth of one hundred pounds per annum would be too little and a fifth of one hundred thousand pounds would be too great.” If the court had adopted the suggestion' of the master and decreed the payment of alimony in the amount which he recommended, it might reasonably be assumed that the decree was entered for the reasons given by the master; in which case we might have beeh constrained to modify the order. The court did not, however, adopt the recommendation of the master; it awarded alimony in an amount $3,632 less than the annual amount recommended by the master. It cannot be said, therefore, that the court below adopted the theory of the master. The court filed no opinion; it may be that it declined to follow the recommendations of the master for the reason that it did not accept his view as to the principles upon which alimony should be awarded. The evidence disclosed that two children, the fruits of this marriage, are now with their mother, who, having for sufficient reason left the home of her husband, has been put to unusual expense. The court was vested with discretion in this matter, the amount of alimony awarded is less than one-third of the income of the husband, and we are unable to say with certainty that the decree involved an abuse of discretion. The evidence established that a large part of the income of the respondent is derived from a business which has been subjected to heavy and varying rates of taxation and regulations which render its future uncertain. The necessities of the Federal government have, since this case was argued in the court below, resulted in increased taxation of such large incomes as that of this respondent and additional exactions of this character are reasonably to be anticipated. The power of the courts to modify such a decree as that with which we are nowT dealing, and increase or decrease the amount to be paid as alimony, so as to conform to the equitable rights of the parties is clearly recognized in McClurg’s App., supra. The right of this respondent to his property and the income which it produces is subordinate to the power of the government to levy taxes and regulate the business from which the income is derived. It is within the power of the court below to grant such relief to the appellant as to right and justice may appertain, upon his application, when testimony can be taken fully disclosing the financial condition of the respondent and the amount reasonably necessary to maintain the libellant according to the station in life of the parties.

The decree of the court below is affirmed, with leave hereafter to move the court below to modify such decree upon sufficient cause to be shown, and the costs are ordered to be paid by the appellant.