97 Pa. Super. 424 | Pa. Super. Ct. | 1929
Argued October 7., 1929. This is an appeal from the judgment of the Court of Quarter Sessions of Montgomery County committing appellant to the Montgomery County prison for contempt in failing to pay money for the support of his wife, as directed by the court, based on an order entered September 15, 1923.
Appellant attacks the validity of the original order. It was entered when appellant and his wife were living together in a house owned and furnished by him, and was in the following form: "And now, September 15, 1923, this case having been called for further hearing, in pursuance of the understanding entered into at the original hearing, it is agreed by counsel, at bar, in the presence and within the hearing of their clients, that the defendant shall maintain the home as heretofore, and perform his general duty of supporting his wife, and, that in addition thereto he shall, from and after this date, weekly pay to her the sum of twenty-five dollars for her exclusive use, in the nature of pin money and to defray the cost of her wearing apparel or clothing, and allow her the use of the telephone for long distance or toll calls to the extent of four dollars per month, which, with the regular contract rate, he shall pay. If these extra territorial calls exceed four dollars in any one month, then the wife is to pay the excess out of her allowance of twenty-five dollars above-mentioned; and that the defendant shall pay the costs of this proceeding." Appellant complied with the order for about three years. He now contends that, although the order was entered pursuant to his agreement in open court, it cannot be enforced against him as to *426 any amount over and above the sum of $25 per week awarded his wife for her clothing and pin money; that as to any further requirement in respect to maintaining the common home and supporting his wife, the order is invalid and unenforceable, and cannot support a commitment for contempt in failing to obey it.
This court said in Carey v. Carey,
It is apparent that an order made by the court for the maintenance and support of a wife, where she and her husband are living together in his house, sustaining the family relation, must differ in character from such an order made against a husband who has deserted his wife and is not living with her. It is ordinarily desirable that the family relation be kept up and, where the parties are willing to do so, such willingness can be recognized in the order. It is not necessary that the court should order the husband to pay *427
his wife a sum sufficient to keep and maintain the common home, thus taking out of his hands and placing into hers the conduct and management of their joint living expenses; it can as a part of its order direct the husband, where he and his wife are willing to live together in the family relation, to maintain the common home and supply the necessary food and shelter incident thereto. We have several times recognized a somewhat similar situation and upheld orders that embraced more than a mere weekly or monthly money payment. In Com. v. Nugent,
But it follows that an order of this unusual nature and character can only remain in force, as respects the direction to maintain the home and support the wife therein, as long as the parties are living together in the home. The court cannot require them to live together, and if the family relation on which the order was predicated is broken, the order, as respects the *428 common home, is no longer applicable, and the wife should thereupon apply for a modification of the order, based on the new condition of an absent or deserting husband, in which her maintenance and support are provided for by a weekly or monthly money payment.
In the present case the learned court below was most careful and painstaking in considering and segregating the items for which the defendant was chargeable under the order of September 15, 1923. In only one respect are we unable to sustain its action. As finally entered the order contains items aggregating $218.15 which were incurred subsequent to April 28, 1928, the date when the evidence on both sides shows that the defendant left the common home, after his wife had refused to move into a smaller and less expensive house. The order of September 15, 1923, will not cover expenditures incurred in the maintenance of the house as the wife's separate home. Her course thereafter was to apply for a change in the order to meet the changed condition. We are obliged to give this matter consideration because the order of September 15, 1923, being general in its terms, the contempt with which the appellant is chargeable is really directed to the order of the court of March 1, 1929, confirmed on June 7, 1929, fixing the amount payable under the original order, and if it included items incurred after that order became non-effective, the judgment should be reviewed and modified as being to that extent in excess of the lower court's authority: Palmer v. Central Board of Education,
The order of the court below is accordingly modified by reducing the amount, for refusing to pay which the defendant is in contempt, from $1,941.98 to $1,723.83, and as so modified the judgment is affirmed; appellant to pay the costs. *429