Opinion by
This is an action in assumpsit to enforce a separation agreement which provided for the support of the plaintiff wife and three children. The court below, sitting without a jury, found that a reasonable sum for support would be $40 a week and entered an order against defendant husband for a total of $406. Wife has appealed on the ground that the order is inadequate.
The parties being unable to agree on a fair sum for support after the wife’s discharge, and the attorneys also failing to agree, this action was instituted, claiming $150 a week for the period June 6, 1950 to September 8, 1952. The court below, applying general support principles, found that $40 a week was fair and reasonable, and, after giving credit for amounts paid, arrived at the order of $406.
The testimony disclosed that at the time of the hearing there were three children aged 23, 20 and 12. The eldest attended college, the youngest was in school and the other was in the navy. The wife was employed during the period in question at a salary of from $50 to $70 a week. Husband’s salary up to April 1950 was $25,800, of which he took only $15,000, the remainder staying with the corporation as a loan. The next two years his salary- was $-15,600..'.. After April .195.2; his salary was reduced to $7,800 per annum, so that his weekly take home pay at the time of the hearing was $119. Husband owned over 85% of. the. stock in the corporation,- the wife holding-.the- remainder except for
The evidence clearly shows that defendant had earnings and earning power during the two year and three month period in question well in excess of his actual net weekly income at time of trial. There was testimony that the corporation was not prospering and couldn’t afford to pay him over $7,800 a year. However, this is not an ordinary support case, but a suit in assumpsit. Therefore defendant’s income, assets and earning power over the entire period in question are relevant in order to arrive at a basis for a fair and reasonable figure for support. In view of the evidence and defendant’s general financial status over the period it is clear that the finding of the court below of $40 a week was entirely too low. Such a rate would result in the wife and three children receiving less than 15% of defendant’s salary for the years 1950 and 1951. It is clear that the separation agreement contemplated a fairer proportion. It is our opinion that a finding of $100 a week or more is warranted under the testimony. In any event the finding of the court below was not supported by the evidence. The intent of the parties at the time of the execution of the agreement was to supply support in the then fair amount of $150 a week. Since defendant did have a somewhat decreased salary and earning power thereafter, the original amount should have been reduced, but by no more than one-third.
In addition the court below made a patent error in computing'the total due under the agreement by beginning the weekly deficits as of July 20, 1951, and completely ignoring the preceding year. The court below found that the payments that plaintiff received
Judgment reversed with a procedendo.