69 A.2d 442 | Pa. Super. Ct. | 1949
Argued September 27, 1949. Ernest Berry appeals from an order requiring him to pay $25.00 a week for the support of his wife, Jeanette Berry. He urges she left him without cause or consent and that subsequent to the separation he offered in good faith to resume the marital relationship.
The parties were married in 1913 and separated in 1927 because of appellant's mistreatment of relatrix and their son. About the time of the separation appellant was convicted of embezzlement and fraudulent conversion, for which he served a jail sentence and as a result of which the common residence of the parties was sold at sheriff's sale and relatrix was compelled to support their son and herself. No application for support was made from the date of the separation until now, an interval of about twenty years, because relatrix had been able to maintain herself by her own employment, with the assistance of the son. She no longer receives aid from the son, who recently married and now lives in South Carolina, nor is she physically able to pursue any employment. It is clear that these circumstances *600
motivate the present support action and account adequately for its delay: Com. ex rel. Cartmell v. Cartmell,
Relatrix testified that she left appellant because she could not tolerate his mistreatment of herself and their son and that he agreed to the separation. Concerning the events leading up to the separation, relatrix testified that appellant ". . . was very cruel to both of us, when we didn't do what he told us he would beat us into line"; that one week prior to the trial of the criminal charges mentioned above appellant had beaten relatrix and their son; and, that she then told appellant that she ". . . couldn't stand any more treatment like that, and [she] would have to go, and he said it was all right." Appellant denied that he mistreated his wife or consented to her leaving. He contends that she left without cause and without his consent and that she was therefore guilty of a wilful and malicious desertion which relieved him from the duty of support.
"Where a wife seeking support has left her husband, the issue is whether he has neglected to maintain her 'without reasonable cause.' A voluntary withdrawal of a wife from her husband without adequate legal reason defeats her right to support. . . . As to the husband, the only 'reasonable cause' justifying his refusal to support his wife is conduct on her part which would be a valid ground for a decree in divorce. . . . But a wife who has withdrawn from the marital domicile, on seeking support is not held to that high degree of proof and need not establish facts which would entitle her to a divorce. It is sufficient if she justifies living apart from her husband *601
for any other reason adequate in law": Com. ex rel. Pinkensonv. Pinkenson,
Where a separation has been consensual, or for adequate cause, the husband must, before his wife's absence from him can become a malicious desertion within the meaning of the law, in good faith take some unequivocal step looking toward a resumption of the family relation: Com. v. Sincavage,
There is no merit to appellant's complaint that the court below erred in basing its order of support upon the report of an interviewer of the Municipal Court which was not made a part of the record. See Com. ex rel. Knode v. Knode,
The evidence supports the order of the court below and amply justifies the action taken. As was said in Com. ex rel.Pinkenson v. Pinkenson, supra: "A judge who sees and hears the witnesses in a case such as this is in better position than we to decide the issue on its merits (Com. ex rel. v. Wm. Goldstein,
Order affirmed. *603
