Commonwealth ex rel. Burns v. Burns

Opinion by

Cekcone, J.,

This appeal arises from the entry of a support order in the lower court based upon the husband’s pre-retirement income. The appeal contests the amount of the order and the basis upon which it was entered.

The parties were married in 1956, the wife’s third and the husband’s second marriage. They separated in 1968, and in accordance with a written separation agreement the husband paid his wife $160.00 per week, based upon the salary he was then receiving. He made these payments without fail for six consecutive years until he retired on January 31, 1974.

His explanation as to why he retired was as follows:

“Q. And, when is the last time that you received a full pay from Gimbels? A. January 31, 1974. I am not on their payroll after that date.

“Q. Mr. Burns, this retirement from Gimbels, was that voluntary on your part? A. Oh, absolutely. Q. In other words, you could still be working there? A. I could still be working there, yes. Q. And, earning $45,000.00 a year or $50,000.00. A. I think so. Q. What was the amount you were paid in 1973? What was your gross income? A. 1973 was $58,000.00.

“Q. In your retirement could you tell us your specific reason for obtaining retirement? A. Tes. I asked the company two years ago to start thinking about replacing me for two reasons. One, I had the misfortune of having a thirty-two year-old son die of a brain tumor. And, I lost a lot of interest. And, right after that, I found that I had a diabetic condition, ivhich has caused me to go on a very strict diet and has been rather costly and has taken a certain amount of pep out of me. And, they agreed after a year to look for somebody, and it took them six months. So, that is why it was only until recently that I was able to leave. I had to break in a new man.”

Accepting this testimony of the husband as the essential part of his case the lower conrt entered an order for the wife in the sum of $123.00 a week. It should be noted that from January 31, 1974 (the last time the husband received a full pay from Gimbels) until June, 1974, the husband had a total income of $45.92 net per week. As of June, 1974, he received an additional $34.70 net per week increase and in February, 1975, he will receive a final increase of $112.38 net per week. To show the husband’s weekly income and to compare that income to the weekly support order, the following chart might be helpful.

Feb. 1974 June 1974 Feb. 1975 thru thru and May 1974 Jan. 1975 after

Husband’s Income $ 45.92 $ 80.62 $193.00

Support Order 123.00 123.00 123.00

Husband’s Income after

payment of order —86.08 —42.38 70.00

At the close of evidence the following appears: “The Court: The Court enters an Order for the wife in the sum of $123.00 a week. Mr. Cherry: If the Court please, may I ask the Court on what basis you make the Order. Is it on the assumption that he was not entitled to retire, sir? The Court: I am not going to answer your question at all. I have taken everything into consideration, and I have come up with an Order which is proper and reasonable.” From looking at the figures in the above chart, it is obvious that the court did not need to answer the question. In order to presently comply with the support order the husband would either have to borrow or deplete his assets. After February, 1975, when his income reaches $193.00 he will be able to retain only $70.00 per week after complying with the support order. There is no doubt that the court based tlie support order on tlie assumption that the husband was not entitled to retire.

Therefore, the first question to be considered is whether or not a 61 year-old man, employed for 45 consecutive years previously, may retire even though the effect of such retirement is to reduce the amount of support he is able to pay his wife. If the evidence demonstrates that he retired solely to extinguish or reduce his earning for the purpose of avoiding support payments to his wife the lower court would then be justified in setting a support order based on his pre-retirement income. This principal is set forth in Commonwealth ex rel. Haley v. Haley, 199 Pa. Superior Ct. 235, 237 (1962) as follows: “In determining what a husband should pay for the support of his wife the court may consider the earning power of the husband and is not restricted to the amount of his actual earnings. Comm. ex rel. Litz v. Litz, 190 Pa. Superior Ct. 310, 154 A. 2d 420 (1959) ; Comm. v. Gleason, 66 Pa. Superior Ct. 506, 72 A. 2d 595 (1950).” But the rule is not as clear as the above cases would lead one to believe. The entire circumstances of his retirement must be examined to determine the extent of the husband’s responsibility to support his estranged Avife. The court in Commonwealth ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 432 (1965) states: “An order should not be based on the husband’s earnings in the past, if it is unrealistic in light of his age or other circumstances. Commonwealth ex rel. Barnes v. Barnes, 140 Pa. Superior Ct. 397, 400-401, 14 A. 2d 164, 165 (1940) ; Jones v. Jones, 348 Pa. 411, 416, 35 A. 2d 270, 273 (1944).” Therefore, in this case before basing the support order on the assumption that the husband was not entitled to retire, the circumstances surrounding the retirement must be considered.

Some light Avas shed on the surrounding circumstances in the testimony set forth above. The lower court had the opportunity to gain more information concerning the retirement when the husband’s counsel filed a petition with the lower court a week after the order was issued, asking for an opportunity to present medical witnesses to verify the husband’s medical condition at the time of retirement. Medical reports were attached to the petition as exhibits, alleging that he had been suffering from duodenal ulcers, mild hypertension, recurring kidney stones (the last of which occurred in March, 1973) diabetes, a marked depression (occurring after his only son, age 32, died of a malignancy in October, 1971) obesity, hypertension, nephro-lithiasis, prostatism, rectal polyps, diverticulosis, emphysema, and gastrointestinal problems. The lower court refused to grant a hearing to consider these medical problems and returned the petition stating: “I return to you herewith your petition for a re-hearing since I do not believe there is any valid reason to grant the same.” If this medical evidence were proven it would certainly be the type of “circumstances” discussed in the Ross case, supra, which would determine if the husband’s past earnings are a realistic basis for the support order. The lower court could have granted the petition either on the basis of case law, Dellacasse v. Floyd, 332 Pa. 218, 2 A. 2d 860 (1938), or statute, 12 P.S. §1032.

If there is evidence indicating that a man planned his retirement so as to retire at the age of 61, then we are of the strong opinion that even if he and his wife were living together there could be no complaint on the part of the wife that her income would be reduced. Certainly this being so, an estranged wife would have no greater claim on such a husband. Furthermore, if there is evidence that ill health was involved in the man’s decision to retire then there is even a stronger case for disallowing an estranged wife’s claim for support based on pre-retirement salary.

In this case a week after the order wa.s fixed based on pre-retirement salary, the husband’s counsel petitioned the lower court to present medical evidence concerning the husband’s reasons for retirement, which the lower court refused. We are of the opinion that the court erred in not entertaining this medical evidence so as to be better able to judge this matter. We, too, would be in a much better position to decide in which of the above categories the husband falls if we were to have the benefit of the proffered medical evidence of the husband.

We therefore remand for a hearing regarding the medical evidence of the husband in this case as it relates to the reasons for retirement.