186 Pa. Super. 74 | Pa. Super. Ct. | 1958
Opinion by
The parties to this support proceeding were married in 1912. He is now 81 years of age and she, 68. Four children were born of the marriage—two sons and two daughters—all of whom are adult and self supporting. The defendant left his wife in the spring of 1940 under circumstances which definitely suggest that the separation was consensual. The wife now makes her home with her son John, and his daughter, and keeps house for them for which service she receives, from the son, food, clothing, shelter and spending money of $10 to $20 per month. She has no property and no other income. Defendant suffered a stroke in 1954, with some resulting paralysis and since leaving the Veterans’ Administration Hospital in March 1955, has had no earning capacity. He owns a house on Eighty-third Street in Philadelphia from which he has an income from rents of $38 per month for the first floor and $5 per week, intermittently, from an uncle, for a room on the second floor. Defendant lives in the two remaining rooms. He supplies heat for the entire premises. His other income, received monthly, con
The defendant here did not meet the burden on him of proving conduct on the part of relatrix that would have supplied him with a valid ground for divorce, which under the settled law (Cf. e.g., Com. ex rel. Davidoff v. Davidoff, 178 Pa. Superior Ct. 549, 115 A. 2d 892) would have been a complete defense to the action. And the fact that the separation of the parties was consensual did not relieve him from liability for the support of his wife. Commonwealth v. Sincavage, 153 Pa. Superior Ct. 457, 34 A. 2d 266; Com. ex rel. Davidoff v. Davidoff, supra. But there are limitations on the extent to which a husband may be compelled to provide support for his wife. When a husband has separated himself from his wife the Act provides for such order upon the husband "being of sufficient ability" as the court shall think reasonable and proper for her support.
Order affirmed.
Criminal Code of June 24, 1939, P. L. 872, §733, as amended, 18 PS §4733.