Opinion
December 12, 1932.
March 3, 1933.
Husband and wife — Consentable separation — Withdrawal by wife without justification — Support — Wife and children — Order — Modification — Act of April 13, 1867, P.L. 78.
In a proceeding under the Act of April 13, 1867, P.L. 78, against a husband for the support and maintenance of his wife and children, it appeared that the wife and children lived separate and apart from the husband. The wife averred that he consented to her leaving their common home and that his moral delinquencies justified her action. The husband denied the allegations of the wife and charged the wife with sexual degeneracy. The court below found that the proof was insufficient to establish the husband's consent and that the wife had left him without sufficient justification in law. An order was made, however, requiring the husband to pay thirty-two dollars a week to his wife and their two children.
In such case the wife was not entitled to an order in her favor and the order of the court below will be modified to the extent that the husband be directed to pay thirty-two dollars a week for the support of his two children; no part thereof to be paid to the wife.
Under the provisions of the Act of April 13, 1867, P.L. 78, a voluntary withdrawal of a wife from her husband, without adequate legal reason, defeats her right to an order in her favor.
Appeal No. 382, October T., 1932, by defendant from order of Q.S., Berks County, June Sessions, 1932, No. 173, in the case of Commonwealth of Pennsylvania v. Arthur W. Bachman.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Modified.
Non-support proceeding under the Act of April 13, 1867, P.L. 78. Before SHANAMAN, J.
The facts are stated in the opinion of the Superior Court.
The court directed the husband to pay $32 per week for the support of his wife and children. Defendant appealed.
Error assigned, among others, was the order of the court.
John B. Stevens of Stevens and Lee, and with him Ralph C. Body, for appellant.
H.F. Kanter, and with him Gabriel H. Moyer and John P. Wanner, District Attorney, for appellee.
Argued December 12, 1932.
This action was instituted under the Act of April 13, 1867, P.L. 78 (18 Pa.C.S.A. § 1251), which subjects any husband or father to an order of support if he separates himself from his wife or children, or without reasonable cause neglects to maintain them.
The wife contends that she is entitled to her husband's support as (1) he consented to her leaving their home; and (2) that his conduct justified her action. The learned court below found that the proof was insufficient to establish his consent, and that she left him without sufficient justification in law. Notwithstanding these findings, the court made an order requiring the appellant to pay $32 a week to his wife and their two children. The appellant expressly states that he is willing to provide liberally for the children, but vigorously objects to contributing anything toward his wife's support.
The record is an exposition of moral delinquencies, embracing charges and countercharges of sexual degeneracy and other revolting conduct, which we deem it is unnecessary to discuss in detail; no good purpose would be served and certainly neither the husband nor the wife would derive any credit by so doing. Our duty in disposing of this appeal is to determine whether the discretion of the court below has been properly exercised in making the order. The burden was on the wife to prove by satisfactory evidence that her husband's conduct warranted her leaving him, or that he consented to a separation. After reviewing this entire record, we find ourselves in accord with the trial judge's conclusion that the wife failed to carry that burden. Under the provisions of the Act of 1867, a voluntary withdrawal of a wife from her husband, without adequate legal reason, defeats her right to an order in her favor. We find no reason, however, to reduce the amount the court ordered the appellant to pay, but will confine the payments to the two children.
The order of the court is affirmed, but modified to the extent that the appellant is directed to pay $32 a week for the support of his two children; no part thereof to be paid to the wife. Costs to be paid by appellant.