170 Pa. Super. 117 | Pa. Super. Ct. | 1951
Opinion by
■ This is an appeal-.by a husband, from an .order against.him for support..of his wife.,: ■-.,;
He first contends that his wife is not entitled to a support order because she “ordered” him out of the house, which she owned. This the relatrix denies and she is corroborated by her son by the former marriage. At the trial, in response to an inquiry as to whether she was willing to have the appellant return to the marital domicile, the wife replied that she was not. The only legal reason that would justify the (any) husband from supporting his wife is reason that would entitle him to divorce. Com. v. Henderson, 143 Pa. Superior Ct. 347, 17 A. 2d 692; Com. ex rel. Myerson v. Myerson, 160 Pa. Superior Ct. 432, 51 A. 2d 350. Clearly there is nothing in this record that would entitle the appellant to a divorce. Consequently there is no merit in this contention of appellant.
He next contends that since he offered at the trial to return to the marital domicile he thereby absolved himself from liability for support of his wife. His offer to return involves the issue of his good faith in making such offer, and the trial judge, in resolving this issue against the appellant, stated: “Bona fides is the fundamental test which every offer of reconciliation must survive. When the parties are estranged by financial matters and the husband’s drinking, and the husband at a non-support hearing for the first ’time publicly offers to return, such offer can. well be said to be a stratagem or a technical expedient to deféat a. support
A judge who sees and hears the witnesses in a case such as this is in a better position than we are to decide the issue on its merits, and our function on appeal is merely to determine whether the lower court is chargeable with an abuse of discretion. Com. ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 228, 57 A. 2d 720; Com. ex rel. Geiger v. Geiger, 167 Pa. Superior Ct. 26, 74 A. 2d 739. From our examination of the record we find no abuse of discretion in this case.
Order affirmed.