Opinion
March 28, 1962.
April 12, 1962.
Husband and Wife — Support — Children — Evidence — Competency of one spouse to testify against other — Act of May 11, 1911, P.L. 269 — Justification of wife for leaving — Order including support of son required to leave school to support family — Earning power of defendant.
1. In nonsupport proceedings, one spouse may testify against the other: Act of May 11, 1911, P.L. 269, § 1.
2. In a nonsupport proceeding, in which it appeared that at the first hearing defendant chose to represent himself, instead of requesting counsel, and repeatedly refused to testify although given an opportunity to do so, with warning of the consequence of refusal; that an order for a specified sum weekly was placed upon defendant for the support of his wife and five children; that defendant filed a petition for rehearing and for a reduction of the order, alleging that he had not been represented by counsel and had not comprehended the nature of the proceedings, and averring various facts bearing upon the merits; that the trial judge refused to grant a rehearing upon the merits of defendant's liability for the support of his wife and family; and that the court below, holding that relatrix had adequate legal reason for leaving defendant, not only because of his conduct toward her and the children but also because of his failure to support the family, that the order entered was reasonable, considering defendant's net take-home pay when employed, and allowance for possible bona fide periods of unemployment, and the earnings of relatrix, that the son, seventeen years old, should not be required to leave school in order to help support the family and the order should include the support of the son, that defendant, who was then unemployed, had made insufficient effort to obtain employment or had deliberately been withdrawing from income-producing work, and that defendant had failed to present convincing evidence to establish that his earning power was such as to warrant reduction of the order, refused to reduce the order; it was Held that the order of the court below should be affirmed.
Appeals — Questions not raised in court below.
3. Questions not raised in the court below will not be considered on appeal.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 18, Oct. T., 1962, from order of Court of Quarter Sessions of the Peace of Bucks County, May T., 1961, No. 37, in case of Commonwealth v. Ernest Trimble. Order affirmed.
Same case in court below: 26 Pa. D. C. 2d 561.
Nonsupport. Before MONROE, J.
Order entered directing defendant to pay stated weekly amount for support of wife and children; petition for rehearing and for reduction of order denied and final order entered. Defendant appealed.
Ernest Trimble, appellant, in propria persona.
Don Weisberg, for appellee.
Argued March 28, 1962.
In this appeal from an order on appellant for the support of his family he assigns nine questions of alleged error, but only two of them were raised in the proceeding below, viz., (a) the right of his spouse to testify and (b) the sufficiency of the evidence. For the reason that they were not raised in the court below, the other seven assignments will not be considered. Sproul v. Stein, 348 Pa. 269, 35 A.2d 61; Parke v. Pennsylvania Threshermen Farmers Mutual Casualty Ins. Co., 334 Pa. 417, 6 A.2d 304; Blose v. Martens, 173 Pa. Super. 122, 95 A.2d 340.
As to the two that were raised, the first has no merit since one spouse may testify against the other in proceedings of this nature, Act of May 11, 1911, P.L. 269, § 1, 19 P.S. 683; and the second is adequately covered by the opinion of the court below.
Order of the court below is affirmed on the opinion of Judge MONROE of the Court of Quarter Sessions of the Peace of Bucks County as reported in 26 Pa. D. C. 2d 561.