Commonwealth v. Hawkins

80 Pa. Super. 520 | Pa. Super. Ct. | 1923

Opinion by

Keller, J.,

The sole question raised by this appeal is whether an order of the court of quarter sessions duly entered directing a husband to pay a certain sum monthly for the support and maintenance of his wife, in proceedings under the Act of April 13, 1867, P. L. 78, as amended by the Act of March 5, 1907, P. L. 6, is automatically revoked by the wife’s removing her residence to another state.

It is not disputed that the order when issued was valid and regular. Whether the husband, at the time of his arrest had established his residence in Connecticut, or not, the court had the power to make it. “Under its provisions [Act of 1867, supra,] the court of quarter sessions of any county where the complaint is made has jurisdiction of the proceedings to enforce support of the deserted wife, without regard to the settlement or residence of the defendant husband and without reference to where the original desertion took place”: Com. v. Tragle, 4 Pa. Superior Ct. 159, 163. In Barnes v. Com., 11 W. N. C. 375, the desertion took place in California; in Com. v. Hart, 12 Pa. Superior Ct. 605, in New Jersey. Nor did the husband’s subsequent removal to Connecticut, if such was the case, have any effect upon the order. It remained in force irrespective of the defendant’s changes of domicile.

Being valid when entered we fail to see that it was revoked or rendered inoperative merely by the wife’s removal to another state. The Act of 1867 is not a poor law for the relief of the poor district in which the deserted wife resides, as contended by appellant. It was expressly declared to be a remedy in addition to the poor laws and was enacted for the relief of deserted wives and children: Demott v. Com., 64 Pa. 302, 304; Com. v. Demott, 64 Pa. 305. This is apparent also from its provision authorizing the court to order the husband to pay such sum as it shall think reasonable and proper for their comfortable support and maintenance; not merely the cost of their subsistence as charges on the poor district. Nor is there any merit in appellant’s contention that the court’s judgment is intended to be based on an intimate knowledge of local conditions, for as before pointed out the jurisdiction of the court is not confined to the county where the defendant has his residence or settlement: Com. v. Tragle, supra; Com. v. Hart, supra; Keller v. Com., 71 Pa. 413; nor to the county where the wife resides: Com. v. Hopkins, 53 Pa. Superior Ct. 16, affirmed 241 Pa. 213. In the last named case the husband was ordered to pay for the support of his wife and children resident in the State of Ohio, and while Judge Head tentatively suggested that the wife might not have lost the citizenship which had formerly been hers through her marriage with defendant, the affirmance of the order was not made dependent on that circumstance. The Act of 1867 is not limited in its application to citizens of this Commonwealth. Furthermore, it has been decided that the constructive domicile of the wife with her husband will not be applied as respects a deserted wife who actually lives elsewhere: Starr v. Starr, 78 Pa. Superior Ct. 579, 582. The right of Mrs. Hawkins to obtain relief under the Act of 1867 was not affected by her husband’s acquiring a new residence or domicile or even citizenship in another state.

When- this proceeding was begun, the defendant was “within the limits of this Commonwealth,” and the wife was a resident of Pennsylvania, and remained such for some months thereafter. The order had the force of a judgment duly entered upon which writs of execution and attachment may issue: Amendatory Act of April 15, 1913, P. L. 72. It was valid when entered, and we are not satisfied that its force and validity is destroyed by the wife’s change of residence. The act does not say so and we will not infer it.

A sentence, on conviction of fornication and bastardy, that the defendant pay a weekly sum to the mother for the support and máintenance of the child, is, in the first instance for the relief of the poor district and only incidentally for the benefit of the mother: Philippi v. Com., 18 Pa. 116, 117; Beck v. Finnefrock, (No. 2), 72 Pa. Superior Ct. 544, 548; yet we have never heard it seriously asserted that the defendant is relieved of liability thereunder because the mother thereafter removes from the poor district or even from the Commonwealth.

The order appealed from is, in effect, only a modification and reduction of the original order and as such it is affirmed at the costs of the appellant.