Commonwealth v. Cooper

• Court: Pennsylvania Superior Court
• Writing for the Court: GUNTHER, J.
• Citation: Com. v. Cooper, 128 A.2d 181, 183 Pa.Super. 36 (Pa. Super. Ct. 1956)
• Decision Date: 28 December 1956
• Docket Number: 3700
• Parties: COMMONWEALTH of Pennsylvania v. Dr. Joseph COOPER, Appellant.

Page 181

128 A.2d 181

183 Pa.Super. 36

COMMONWEALTH of Pennsylvania v. Dr. Joseph COOPER, Appellant.

Superior Court of Pennsylvania.

Dec. 28, 1956.

Thomas C. Moore, J. Dallas Shepherd, Wilkes-Barre, for appellant.

Henry Thalenfeld, Albert H. Aston, dist. Atty., Wilkes-Barre, for appellee.

Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN and CARR, JJ.

GUNTHER, Judge.

This appeal if from the award of support commenced by criminal proceedings. Appellant, Dr. Joseph Cooper, and appellee. Gertrude Cooper, were married on April 30, 1955. Appellant at the time was age 40 and appellee was age 32. After the honeymoon, they lived together for a period of approximately two months in Wilkes-Barre, Pennsylvania, until July 23, 1955, when they separated. During the time the parties lived together as husband and wife, marital difficulties arose between them. On July 23, 1955, appellee was locked out of her home, and she went to live with her parents.

Attempts at reconciliation having failed, a nonsupport action was commenced and a hearing was held thereon on September 9, 1955. Before an additional hearing could be held on appellant's financial status, the parties resumed living together from September 21, 1955 until December 27, 1955, when Mrs. Cooper went to the hospital for childbirth. After she left the hospital, she took her child and returned directly to her parents' home where she continued to reside. Hearings on the case were resumed on May 4, 1956 and at the conclusion thereof, appellant was ordered to pay the sum of $350 per month for the support of his wife and child. This appeal followed in which appellant challenges the right of the wife to any support whatever on the ground that the wife was not legally justified in leaving her husband. The amount of support is challenged on the ground that it is excessive.

Our duty is to determine whether there is sufficient evidence to sustain the order of hearing judge. Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa.Super. 527, 117 A.2d 793. In cases such as this, the only legal cause which would justify a refusal by the husband to support his wife is conduct of the wife which would support valid grounds for divorce. Commonwealth v. Sgarlat, 180 Pa.Super. 638, 121 A.2d 883; Commonwealth ex rel. DiPietro v. DiPietro, 175 Pa.Super. 18, 102 A.2d 192. Conversely, where a wife voluntarily leaves her husband, the burden is upon her to establish justification for leaving or that the husband consented to the separation: Commonwealth v. Sgarlat, supra; Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa.Super. 227, 57 A.2d 720; Commonwealth ex rel. Van Wagenen v. Van Wagenen, 167 Pa.Super. 354, 74 A.2d 740. However, the wife need not establish facts which would entitle her to a divorce but only facts which would justify her living apart from her husband.

Our review of the record amply sustains the order of the court below. It appears that difficulties arose between the parties almost from the beginning of their marriage. Appellant did not permit his wife to leave the home without his approval, forbade her family from coming into their home. She was constantly reminded that it was his home they were living in, his furniture and his money to maintain the home. He sought to make it clear that he was the master of the home. Prior to the first separation, the husband locked out the wife because she did not return at five o'clock from swimming as he had instructed her to do. She called him at his office to be permitted to enter the home but he refused to talk to her. She then moved in with her parents, and he did not call on her during the first separation. On September 21, 1955, the parties resumed cohabitation on the promise of the husband to change his attitude toward the wife, but his habits and treatment of her grew worse. He cut off her charge accounts, removed her name from a joint bank account, gave her no money to purchase food and necessities for the home and herself, required her to buy food on credit at a store across the street, and limited her to an allowance of five dollars per week which he cut off completely around the middle of November, 1955. During her pregnancy, he persisted in habits which he knew would annoy her and make her life intolerable....