190 Pa. Super. 45 | Pa. Super. Ct. | 1959
Opinion by
The husband in this case has appealed from the order of the Municipal Court of Philadelphia County directing him to pay his wife the sum of $25.00 per week for her support.
The parties were married February 6, 1928, and eight children were born of this marriage. On August 26, 1949, when the parties were separated and two of
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, and 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 believe 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
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the previous adjudication and concluded that the order entered in 1949 did not dispose of the wife’s petition and was superseded by her later petition filed in 1958. This appeal followed.
It is our duty to examine the 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 convinces 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
If, as we believe, there was valid ground for refusing support for the wife in the first instance, and if the 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 conduct which
Order reversed.