174 Pa. Super. 425 | Pa. Super. Ct. | 1953
Opinion by
More than ten years ago Susan Harvey brought an action against the defendant, her husband, for her support and the support of their three minor children alleging that he had deserted his family and had failed to maintain them. After hearing, the lower court, on April 12, 1943, ordered the defendant to pay his wife $75 per month for her support. Hearing on the complaint as to the children was continued from time to time and no' order was made for their support until April 8,1953. On June 30,1943, when defendant failed to. appear on notice served upon him, an order for the attachment of his person was issued by the court. At that time he was in default in his payments under the support order but the bench warrant was prompted by the wife’s complaint that the defendant “while under the influence of drink, broke down the front door of the house and attempted to force his attentions upon her.” Although the defendant then left the county and
The wife, Susan Harvey, had died on February 9, 1953 and her oldest daughter, duly appointed adminis-tratrix, represented her estate at the hearing in this case. It was conceded by the defendant that he had made only two payments of $37.50 each to the collection clerk in the Probation Office- as directed by the court in the support .order, the last of which was made on May 10, 1943. The defendant contended however that he made other substantial payments directly to his wife for her support but the testimony to that effect was incredible and the court properly refused to accept it. Upon sufficient competent evidence the court found: “Defendant made no payments on account of the order of court for support of his wife from May 10, 1943 to February 9, 1953, the date of his wife’s death; and the •total arrearage as of that date is $8,775.” It is conceded that the records of the Probation Office support the finding. ■
There is no merit in appellant’s contention that the court in violation of Article 1 Section 9 of the Pennsylvania Constitution considered complaints contained in'letters of • the prosecutrix written to the Probation Officer. A sufficient answer to this contention appears in the record in this case which discloses that this evidence was developed by defendant’s • counsel and not otherwise. Having invited the court to consider the
Shortly after the death of his wife the defendant returned to Northampton County, and was ‘then arrested on the bench warrant issued on June 30, 1943 which the sheriff had not served because defendant was not previously found in his bailiwick. The lapse of time before service did not invalidate the warrant and the defendant does not so contend. Before the separation the defendant by his own labor had built the shell of a small dwelling house in Middletown, Northampton County. The prosecutrix according to the evidence made the structure habitable after the desertion by the expenditure of upwards of $3,000 . out of her earnings. Title to the land in the parties by entireties, vested in respondent on the death of his wife. At the hearing in this case the effort of defendant was to defeat the attachment on technical grounds or, failing that, to show full compliance with the order to protect his property from execution for the collection of the balance due at the time of Ms wife’s death. Shortly after defendant’s desertion of his family- the children, as wards of-the Juvenile Court, were placed in institti-
Judgment of sentence affirmed.