57 A.2d 720 | Pa. Super. Ct. | 1947
Argued November 10, 1947.
In this proceeding, the wife's petition for an order on her husband for support was dismissed by the lower court, but only after serious consideration of all of the testimony. 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,
The parties were married on February 20, 1945, in Leesville, Louisiana, while the respondent was in military service. He is sixteen years older than his wife. Following their marriage they lived together near a number of military camps throughout the south where respondent was stationed from time to time. When he was discharged from the army, on age, in September 1945, the parties came to live in Philadelphia where respondent had lived and was employed when inducted into the service. On his return he resumed teaching in a girl's school and also conducted a retail women's apparel shop in Philadelphia in partnership with his brother. Immediately after moving to Philadelphia their marital troubles began. Relatrix left her husband on two occasions thereafter, the last on May 9, 1947.
This proceeding was brought under section 733 of the Act of June 24, 1939, P.L. 872, 18 PS 4733. Since this statute, in substance, is a reënactment of the Act of April 13, 1867, P.L. 78(Com. v. Shankel,
Relatrix at the time of the hearing in this case, was suffering from a nervous disorder according to her physician's testimony and a psychiatric examination ordered by the court confirmed that diagnosis. Although the parties professed fondness for each other there undoubtedly was a clash of temperaments and the respondent was not wholly blameless. But the court was right in refusing to attach weight to the extravagant language of the relatrix in testifying to respondent's alleged improper treatment of her amounting to indignities as the cause of her malady and we need not discuss that phase of her complaint. Relatrix was of a high strung and nervous disposition. But she also demonstrated a total lack of self-discipline. She was immature and uncoöperative. The real cause of the separation was her overpowering desire to be with her mother in New York. When after respondent's discharge from *231 the army the parties spent two weeks in Atlantic City on a "delayed honeymoon" her mother accompanied them at the insistence of relatrix. She had stated that she was torn between love for her husband and her mother, and her conduct confirmed the statement. While in Philadelphia, she telephoned her mother daily and visited her in New York about once each week. She lived with her mother during the first separation from January to May in 1946 when she returned to Philadelphia. Her `mother complex' was largely responsible for the strained marital relations. She complained of her husband's penury but without good cause. He supported her adequately according to his means. The truth undoubtedly is that she had grandiose notions as to how he should provide for her and made demands on him accordingly. True, the apartment in which they lived was little more than adequate but in a shortage of housing it was the best available on respondent's discharge from the army. He was willing to buy when a suitable home could be found. She insisted that respondent resign his school position and close out his business in Philadelphia and move to New York, taking the chances of making profitable connections there.
It seems apparent that relatrix's nervous disorder was not caused by respondent's conduct and was not wholly involuntarily suffered at its inception by her but was largely self-induced by her wilful and determined dissatisfaction with life with her husband in Philadelphia and the testimony is insufficient to support a finding that living apart from her husband is essential to a cure of her malady. A circumstance of some general significance is the fact that at the argument before the lower court on July 21, 1947, appellant stressed her right to support on the ground that the order would be but temporary pending her return. The lower court testing the sincerity of that argument did not enter an order in the case until October 28, 1947, and in the meantime had a number of conferences with counsel looking *232 toward a reconciliation, without success. And up to the date of filing this opinion in the present appeal, relatrix, eight months later, still contends for support to satisfy a temporary need. It is a reasonable inference from the testimony that relatrix has no present intention of ever returning to her husband and that her nervous disorder is but an excuse for obtaining support while separated.
The lower court found that the relatrix has not met the burden of proving a separation from her husband upon adequate legal reasons. The court is not chargeable with an abuse of discretion in that conclusion from the evidence. Relatrix's persistence in the separation amounts to wilful desertion which relieves the respondent from the obligation under the statute to support his wife.
Order affirmed.