Best v. Best , 171 Pa. Super. 629 ( 1952 )

Opinion by

Arnold, J.,

Tbe defendant-husband appeals from a decree of tbe court below (a) refusing bim an absolute divorce, and (b) granting to his wife a divorce' a mensa et tboro with alimony. Tbe cases were tried together by tbe court below and tbe determination of tbe trial judge is entitled to tbe fullest consideration since be beard and saw tbe witnesses. We bave made an independent and careful review of tbe evidence and are convinced, as was tbe court below, that tbe evidence is amply sufficient to sustain tbe decree granting ber a divorce and denying one to bim. Tbe testimony discloses that tbe husband, over a long period, quarreled with ber over finances, administered corporal punishment to ber, bad prolonged and unexplained absences from home, was guilty of open association with other women, and made requests on her for unnatural intercourse. A reading of tbe record shows that be was guilty of studied neglect, vulgarity, manifest disdain, abusive treatment, unmerited reproach, and plainly showed settled bate for ber and estrangement from her.

As in Morgan v. Morgan, 171 Pa. Superior Ct. 625, 91 A. 2d 295, tbe determination by the court below of alimony of $75 per month is not sustained by the testimony. We again call attention to Tbe Divorce Law, 23 PS §47, which Emits alimony in a case Eke this to one-third of tbe annual profit or income of bis estate or his occupation and labor. The testimony indicates that appellant’s business nets bim about $47.70 weekly. He bad capital assets of bank accounts in the sum of approximately $1100, and deposits in bis business account averaged $500 monthly. Tbe court found that bis earnings were $77.70 a week net. As to counsel fees, what we bave stated in Morgan v. Morgan, supra, is equally applicable here: “There is no requirement that counsel fees be limited to a proportion of the income. Such fees should bear some fair relation to tbe husband’s estate and station in life; his ability to pay; the separate estate of the Avif e; and the character, situation and surroundings of the parties.”

We think that justice requires that the record be remanded for the taking of further testimony, particularly as to the business account deposits of $500 monthly, after which the court below will make such order as the evidence justifies under the Act in question. See Morgan v. Morgan, supra.

The decree of the court below in No. 174 April Term, 1951, refusing appellant an absolute divorce is affirmed.

The decree of the court beloAv in No. 175 April Term, 1951, granting the wife a divorce a mensa et thoro is also affirmed. As to the alimony and counsel fees allowed the Avife, the order is reversed with a procedendo.