OPINION BY HIRT, J., April 16, 1952:
The final separation of the parties occurred 32 years after the marriage, when the relatrix left her husband in August 1951. We need not decide whether his mistreatment of her, which caused her to withdraw from the marital domicile, constituted such indignities as would entitle her to a divorce. The testimony clearly discloses that she had reasonable cause, adequate in law, for leaving him and that is all that is required. He therefore, is obliged to support her, since it is conceded that she is not chargeable with any misconduct which would supply him with valid ground for a divorce. Com. ex rel. Pinkenson v. Pinkenson, 162 Pa.Super. 227, 57 A.2d 720; Commonwealth ex rel. Berry v. Berry, 165 Pa.Super. 598, 69 A.2d 442. The respondent has recognized his liability to support his wife by voluntarily paying her $50 per week since
The function of a court in a proceeding for support, such as this, under § 733 of The Penal Code of June 24, 1939, P.L. 872, 18 PS § 4733, is not to punish a husband for his misconduct but to fix an amount which is "reasonable and proper for the comfortable support and maintenance of . . [his] wife . ." There is a limitation by law on the maximum amount of such support order, when children are not involved, in the rule that the award may not exceed one-third of the husband's income. Com. ex rel. Milne v. Milne, 150 Pa.Super. 606, 29 A.2d 228. But in determining the appropriate amount of the order the court is not restricted to the husband's actual earnings, but may also consider his earning power (McMahon v. McMahon, 167 Pa.Super. 51, 74 A.2d 718; Commonwealth v. Gleason, 166 Pa.Super. 506, 72 A.2d 595) and the nature and extent of his property and other financial resources. Commonwealth v. Surovitz, 148 Pa.Super. 342, 25 A.2d 761.
Respondent has developed a highly profitable real estate business in the City of Chester. Whenever requested by him, relatrix, over a period of years, has performed clerical work in his real estate office. She is familiar with his property and the extent and sources of his income and her estimates have not been contraverted. Respondent's United States Income Tax return shows a total taxable income of $24,136.50 for the year 1950. His income tax for that year was $5,422.54. Respondent will be obliged to pay a total of $6,500 per year under the present support order and that amount is somewhat in excess of 1/3 of respondent's net income
In any view the amount of the order is justified by the large capital resources of the respondent, considered in conjunction with his actual income. The parties own real estate by entireties (on which respondent has collected and retained the rents) valued at about $140,000; other real estate, the title to which is in his name alone, is worth about $285,000. Cf. Commonwealth
Relatrix now has an apartment to furnish and maintain. In seeking support she is not restricted to the cost of bare necessities. She is entitled to an award sufficient for her "comfortable support and maintenance" consistent in amount with respondent's income and station in life. The hearing judge was in better position than we to decide the issue on the merits. Com. ex rel. Pinkenson v. Pinkenson, supra. We find no abuse of discretion in the order.