173 Pa. Super. 233 | Pa. Super. Ct. | 1958
Opinion by
Relatrix, asserting a common law marriage with the respondent, petitioned the lower court for an order for her support and the support of an epileptic child. A hearing was held on August 4, 1952, and a second adjourned hearing on August 19, 1952, when the court entered an order directing the respondent “to pay his wife Nancy” the sum of $14.00 per week for her support. The testimony at these hearings is to the effect that the parties lived together as husband and wife from 1923 until some time in 1943 when relatrix left the respondent because he neglected to support her. Five children were born to the parties while they lived together; the respondent admitted that they were his children and that he had supported them as their father. At the first hearing relatrix testified that she was married to the respondent, if we interpret her testimony correctly, in December 1923. At the second hearing she admitted that, although she secured a marriage license in 1923 she was not married by some un-designated person who apparently was present when the license was issued. There never was a ceremonial marriage. But relatrix, with the consent of respondent,
Not until September 16, 1952 did the respondent deny that he is relatrix’s husband; he then petitioned the court for a revocation of the support order on that ground. At a hearing on the petition the defendant denied the existence of the marriage and attempted to substitute a meretricious relationship. The hearing judge found the respondent evasive and untrustworthy as a witness, and in disposing of the proceeding stated: “We can place no trust in the veracity of his statements at that hearing. He left us with the impression that he had come to undo the effect of his own prior testimony under oath”. The relief sought by the petitioner was denied for want of proof on the above appraisement of respondent’s credibility.
The opinion of the lower court refers to the fact that no appeal was taken from the order of support within 45 days from the date of its entry. For that reason alone respondent is not entitled to relief. The Act of May 11, 1927, P. L. 972, amending §4 of the Act
Here it is conceded that the parties were competent to marry; the validity of the marriage relationship under the common law, found by the lower court as a basis for the support order, was res judicata and could not be questioned in a proceeding to revoke.
Order affirmed.