Commonwealth ex rel. Scarpato v. Scarpato
151 A.2d 783
Pa. Super. Ct.
1959
Check Treatment

Opinion by

Gunther, J.,

The husband in this case has appealed from the order of the Municipal Court of Philadelphia County directing him to рay his wife the sum of $25.00 per week for her support.

The parties were married February 6, 1928, and eight children were born оf this marriage. On August 26, 1949, when the parties were separated and two of *47the children were living with the wife, a petition was filed seeking support for herself and the two children. A hearing was held on this petition and, since the wife had left the home of her husband and sought to obtain support for herself, in addition to the children, testimony was taken to determine the cause of her leaving and to determine whether her separation was for sufficient cause. That testimony disclоsed that for some five years previous to the separation, the parties lived separate and apart from each other in the same house. She gave as her reason for leaving that the husband beat her with a strap the very morning she left. ‍​‌‌​​​‌​​‌​‌​‌​‌​‌​‌​​​‌‌​‌​​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‍The husband testified that she left because she was pregnant and he had nothing to do with it. In corrоboration of this, he produced a letter, admittedly written and signed by the wife and addressed to a person designated only as Tony, in which she made damaging admissions amounting to adultery and that the father of the youngest child was not her husband but. hеr lover, Tony. In that letter, among other things, she characterized her husband as “just a has been” and Tony as a “little hot G.I.” At the conclusion of this hearing, the Honorable Judge Beloff entered an order for the support of the children оnly and excluded the wife.

The separation continued and the wife received no support from the husband. On September 16, 1958, the wife again filed a petition asking support for herself. A hearing on this petition was held on October 31, 1958, аnd the court below entered an order for her support without referring to the previous adjudication. Neither the husband or his counsel made reference to this previous adjudication because they were led to beliеve that the petition was for an increase in the support for the children, and, in fact the husband was not served Avith a copy of this petition. The court below *48proceeded on the theory that the husband had the burden of prоving a defense to the petition for support and then concluded that in this respect he failed.

On November 17, 1958, a petition for vacating the order of support was filed on the ground that the wife was barred by the previous order entered in 1949. This petition was refused without a hearing on November 20, 1958. However, in its ‍​‌‌​​​‌​​‌​‌​‌​‌​‌​‌​​​‌‌​‌​​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‍opinion, the court below made reference to the previous adjudication and concluded that the order entered in 1949 did not dispose of thе wife’s petition and was superseded by her later petition filed in 1958. This appeal followed.

It is our duty to examine thе record to determine whether there is sufficient evidence to sustain the judgment of the Municipal Court. Commonwealth v. Cooper, 183 Pa. Superior Ct. 36, 128 A. 2d 181; Commonwealth ex rel. Myerson v. Myerson, 160 Pa. Superior Ct. 432, 51 A. 2d 350; Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Superior Ct. 116, 111 A. 2d 157. We will not interfere with its determination unless there has been a clear abuse of discretion. Hyle v. Hyle, 188 Pa. Superior Ct. 20, 145 A. 2d 889; Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa. Superior Ct. 440, 136 A. 2d 135.

A review of this record convincеs us that the order of the court below must be reversed. The only legal cause which will ‍​‌‌​​​‌​​‌​‌​‌​‌​‌​‌​​​‌‌​‌​​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‍justify refusal of support is conduct on the part of the wife which would constitute valid ground for divorce. Hyle v. Hyle, supra; Commonwealth ex rel. Mandell v. Mandell, 184 Pa. Superior Ct. 179, 133 A. 2d 235. The proceedings conducted in 1949 and the order entered in connection therewith clearly demonstrate that the husband had valid grounds for refusing to support his wife. We cannot agree with the learned court below that this adjudication did not dispose of the wife’s petition for support. The order *49very clearly directed support for the children only and the necessary implicatiоns negated the wife’s request. As a matter of fact, Judge Beloff lined out any reference to the wife in the original оrder entered in 1949, and in our view, such action had the effect of a dismissal of her application. The reason for his action is contained in the transcript of those proceedings, particularly the letter admittedly written and signed by the wife. If the wife was dissatisfied with such adjudication, she had the right to take an appeal. Not having done so, this adjudication became res judicata. In Commonwealth ex rel. DeShields v. DeShields, 173 Pa. Superior Ct. 233, 98 A. 2d 390, we held that an order for support, unappealed from, usually is res judiсata as to all defenses which have been raised in the proceedings for support. And while we recognized ‍​‌‌​​​‌​​‌​‌​‌​‌​‌​‌​​​‌‌​‌​​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‍that there were exceptions to this rule, the exceptions primarily deal with changed circumstances whiсh give validity to a later application for support. In Commonwealth ex rel. Allen v. Allen, 162 Pa. Superior Ct. 145, 56 A. 2d 343, we held that unless it appears on the record thаt there is an effectual bar to the proceeding, which prevents the court from entering the order, an ordеr for support can always be opened if the circumstances have changed or altered from the timе the first order was entered.

If, as we believe, there was valid ground for refusing support for the wife in the first instance, and if thе separation continued for the same reason and under the same circumstances, there can be no change in circumstances which would authorize the favorable consideration of a later petition. We have been unable to determine from the record what the changed circumstance might be upon which the court below based its order. In our view, if the right of the wife to support terminated because of facts or conduсt which *50would have entitled the husband to a divorce, the burden is upon her to show a change of circumstances which would entitle her to support. The facts ‍​‌‌​​​‌​​‌​‌​‌​‌​‌​‌​​​‌‌​‌​​​​‌‌​​​‌​‌‌‌‌‌​​​‌​‍which precluded a right to support are deemed to continue and the wife, in the instant proceeding, utterly failed to show a change of circumstance.

Order reversed.