201 Pa. Super. 538 | Pa. Super. Ct. | 1963
Opinion by
This is an appeal from an order of support entered in favor of a wife and two children. The action was brought under §733 of The Penal Code of June 24, 1939, P. L. 872, as amended, 18 P.S. §4733.
The defendant contends that he has continued to maintain his wife and children after the separation, and, therefore, no order should have been entered against him. Section 733 of The Penal Code, supra, provides: “If any husband, or father, being within the limits of this Commonwealth, separates himself from his wife or from his children, or from wife and children, without reasonable cause, or neglects to maintain his wife or children . . .” action may be brought against him under the section.
The defendant separated himself from his wife and children and, as we read the record, he orally waived any right to claim that he had “reasonable cause” for leaving his family and he submitted to the jurisdiction of the court for the determination of the amount of the order. The court, presumably on the basis of this waiver, found -that the defendant had deserted his family. We might dispose of the case on the basis of this waiver, but as there may have been a misunderstanding among the parties and the court on what was intended by the
He contends that he did not neglect to maintain his wife and children. The court found that “he was not adequately providing for their care.” The order of $125 a week made by the court at a time when the defendant had been paying only $80 a week would lead us to that conclusion without a specific finding. The defendant attempted to show, however, that in addition to the $80 cash he paid certain expenses, and particularly that he purchased some of the clothing for the children. It was apparent that the adequacy of the clothing purchases would have led to endless bickering over the need for particular articles, the type that should have been purchased and the price that should have been paid for them. The able and experienced trial judge quite properly refused to permit the defendant to pursue this.
It is difficult for an appellate court to formulate rules in support cases which are not subject to numerous exceptions, but we are of the opinion that as a general rule when parents are separated, a mother with custody of the children must be given control of the purchase of the children’s necessities and that she is entitled to a cash order against the father for this purpose, unless, of course, he is supplying her regularly with adequate cash funds. If a father wishes to control the specific purchases for children not in his custody, he has a very heavy burden to establish unusual circumstances such as the total lack of ability in the person having custody to handle the money and make the necessary purchases.
Quoting from Commonwealth v. George, 358 Pa. 118, 124, 56 A. 2d 228 (1948), the appellant argues that “the method whereby a husband secures to his wife and family the necessities of life is not a proper subject for
. This rule is based partly upon practical considerations. It is impractical, if not impossible, for a court to take sufficient testimony on specific expenditures for. living expenses to make an intelligent finding on the adequacy of the support furnished by the head of a household to the other members of the household. But, where the parties are living apart, it would be impractical, . if not impossible, for the court to attempt to glean from testimony whether the defendant is himself purchasing or paying for sufficient specific items of food, clothing and other necessities for his wife and children. As a general rule,. Avhen the parties are separated, the defendant should supply cash for living expenses, and Avhen the court finds the amount of those payments to.be inadequate it may enter an order for an adequate amount. Commonwealth ex rel. Iezzi v. Iezzi, 200 Pa. Superior Ct. 584, 588, 190 A. 2d 334 (1963). That is what the court did in this case.
The legislature gave the courts broad powers over support orders. It is within the discretion of the trial judge to determine under all the circumstances what is just and equitable to all parties concerned. Commonwealth ex rel. Silverman v. Silverman, 180 Pa. Superior Ct. 94, 98, 117 A. 2d 801 (1955). The court here properly applied the laAV, and entered a just and equitable order.
