204 Pa. Super. 135 | Pa. Super. Ct. | 1964
Lead Opinion
Opinion by
We are here concerned with two appeals by Edna Shapiro from orders of the County Court of Philadelphia in a support proceeding. In the first order, dated December 4, 1963, the court below ruled that appellant was not entitled to support from her husband. The second order, dated January 10, 1964, refused appellant’s petition for a rehearing.
Edna and Samuel Shapiro were married on May 22, 1922, and lived together until January 9, 1962, when Mrs. Shapiro left the common home. The extended support proceeding arising from this separation was the subject of twelve hearings in the court below covering the period from June 13, 1962 to October 30, 1963. The voluminous original record, of which we have made a painstaking review, contains over one thousand pages with fifty some exhibits. It fully supports the conclusion of the hearing judge that Mrs. Shapiro’s voluntary departure was without adequate legal reason and without the consent of her husband.
The law governing controversies of this nature is so well settled that it requires merely a brief restatement. The burden is upon a wife who has voluntarily left her husband to establish justification for leaving or that the husband consented to the separation: Commonwealth ex rel. Coleman v. Coleman, 184 Pa. Superior Ct. 256, 133 A. 2d 307. In the absence of any legal ground justifying her separation, a wife is not entitled to a support order: Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A. 2d 833. Our duty on appeal is to determine whether there is sufficient evidence to sustain the order of the hearing judge: Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A. 2d 793. In this connection we adopt with approval the following excerpt from Judge Stout’s able and exhaustive opinion:
“Even if Mrs. Shapiro were a credible witness— which, because of evasiveness, conflicts of testimony and gross exaggeration that approached prevarication, she is not — she established no adequate legal reason for leaving . . . This separation was not a consentable one . . . Petitioner declared frequently, even to the day of trial, that she neither wanted to live with defendant nor to live in her home even if defendant moved out. In such circumstances, she is not entitled to support”.
Appellant’s principal contention, evidenced by her statement of the question involved, is that the court below erred in refusing to grant a rehearing. It is al
In support of this petition, appellant attached three affidavits. The first is by Dr. Charles F. Geschickter, “that in his medical judgment, if Edna Shapiro continued to live with Samuel Shapiro, the conditions surrounding such a relationship would prove to be injurious to her health”. Dr. Geschickter had been appellant’s physician for over twenty-five years. He testified at length in the support proceeding. The parties authorized the hearing judge to select an impartial medical specialist. At the hearing of October 10, 1962, Dr. L. M. Tocantins was called as an expert witness for the court, thoroughly examined and cross-examined. The question of Mrs. Shapiro’s condition was fully explored. Nowhere was there any inference or implication that it was in any way related to her marriage.
The second affidavit is that of appellant’s son, Bennard Shapiro, who had refused to testify at any of the previous hearings. It is merely cumulative of other testimony already in the record. The third affidavit is that of Patricia Kahn Shapiro, wife of Bennard Shapiro, and relates solely to a disturbance in the Bellevue Stratford Hotel on December 22, 1961, on which occasion appellant was not even present.
The general rule is that, to warrant a new trial on the basis of after-discovered evidence, the evidence must have been discovered since the trial and be such as could not have been obtained at the trial by the use
A petition for a rehearing in a support proceeding is addressed to the sound discretion of the trial judge: Commonwealth ex rel. Arbitman v. Arbitman, 161 Pa. Superior Ct. 529, 55 A. 2d 586. We perceive no abuse of discretion in the action of the court below in the case at bar.
Orders affirmed.
Dissenting Opinion
Dissenting Opinion by
This Court has frequently said that a wife is not entitled to an order of support from her husband if she has been guilty of conduct which would entitle him to a divorce. The principle as applied to summary support proceedings deserves re-examination.
It is now possible for three hearings to be in process at the same time for a determination of the rights of the same parties to a divorce.
The Commonwealth will support through public assistance a wife who has no other means of support. Thus, the courts permit a husband to transfer from himself to the Commonwealth the support of a wife from whom he suffered indignities or who left his home without cause. If he insists upon keeping her as his wife, should he be relieved of all responsibilities as her husband?
Should an ill wife be denied all support from a rich husband solely because she elects to reside with her son? Here we have an emotionally disturbed 62 year old wife suffering from leukemia. She is denied support from her wealthy husband of 41 years because the trial judge thought her reasons for living with her son separate from her husband were insufficient. Temporary orders of from $100 to $200 per week had been made against the defendant by the trial judge prior to her final order. I think the trial judge should have made an order of support for this wife. At first
Support hearings, hearings on the husband’s action for divorce from the bonds of matrimony and hearings on the wife’s action for divorce from bed and board.
