Commonwealth ex rel. Gitman v. Gitman

Dissenting Opinion by

Mr. Justice Jones:

The scope of appellate review on this appeal which involves the amount of an order of support for a wife and children is well settled.1 In Commonwealth ex rel. Marvin v. Marvin, 193 Pa. Superior Ct. 179, 164 A. 2d 128 (1960), the Court said: “An order of support, based on competent evidence, will not be reversed on appeal. The law has placed upon the lower court the duty of deciding what sum is reasonable and proper *400for the comfortable support and maintenance of a wife and children and determining whether the husband has sufficient ability to pay such sum. Unless there is a clear abuse of discretion, the appellate court will not substitute its judgment for that of the trial judge, [citing authorities].

“A trial judge who sees and hears the witnesses in a support action is in a better position tha[n] the Superior Court on appeal to decide the issue and its merits, [citing an authority]. It is the function of the [appellate court] only to review the testimony taken at the hearing and to determine whether the order can be sustained on any valid ground, [citing an authority].” (p. 181) (Emphasis supplied).

With that criterion in mind, I have read, in addition to the briefs of the parties, the entire voluminous record of testimony taken in the court of quarter sessions.

The opinion of Justice Musmanno insinuates that the court of quarter sessions failed to make a thorough study of the assets and earning power of Gitman, particularly, as to his financial interest in three corporations wherein he held a substantial stock-ownership, and, de-emphasized certain living expenses of Gitman charged off to one of these corporations; in my opinion, the record completely fails to sustain such insinuation or deemphasis. For the treatment in the opinion of Justice Musmanno of the impact on the amount of support which Gitman should pay of indebtedness owed by him upon which he is required to make payments of principal and interest and, particularly, for the suggestion that life insurance policies on Gitman’s life, in which the wife and children are the beneficiaries, should be cashed and their cash value realized, I find no warrant in our case law.

I am convinced that the instant record does not show any abuse of judicial discretion upon the part of *401the judge who, after hearing and observing the parties and their witnesses, made the instant order directing Gritman to pay $12,000 annually for the support of his wife and children.

Mr. Justice O’Brien joins in this dissenting ©pinion.

In passing, I would note my disapproval of the allowance-of an appeal in this case. Our Court, already burdened with a tremendous workload, should not be called upon to determine the propriety of orders in nonsupport cases. The Superior Court, with its vast experience in this area of the law, should be the court of last resort.