Commonwealth ex rel. Herman v. Herman

• Decision Date: 01 March 1929
• Docket Number: 92-1928
• Citation: 95 Pa.Super. 510
• Parties: Commonwealth ex rel. Herman, Appellant, v. Herman
• Court: Pennsylvania Superior Court

95 Pa.Super. 510

Commonwealth ex rel. Herman, Appellant, v. Herman

No. 92-1928

Superior Court of Pennsylvania

March 1, 1929

Argued October 19, 1928.

Appeal by complainant from order of Municipal Court Philadelphia-1927, No. 749, Probation No. 68042, in the case of Commonwealth of Pennsylvania ex rel. Mary S. Herman v Louis Herman.

Petition for maintenance. Before Walsh, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the petition. Petitioner appealed.

Error assigned was the order of the court.

William A. Gray, for appellant. -- The wife's conduct unless it be sufficient cause for divorce will not justify her husband's abandonment of her and bar her right to support: Grove's Appeal, 37 Pa. 443; Olive v. Olive 1 Haggard Con. Rep. 361.

Herman Moskowitz, for appellee.

Before Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

Cunningham, J.

After a hearing and rehearing in a desertion and non-support proceeding instituted by the Commonwealth, upon the relation of Mary Herman, for an order directing her husband, Louis Herman, to contribute to her support, the judge of the municipal court of Philadelphia County before whom the hearings were held, dismissed the application and the petitioner has appealed to this court.

These material facts appear from the testimony: The parties were married February 17, 1924, and have no children. Defendant is a practicing dentist and an instructor at Temple University. Petitioner, prior to her marriage, had been earning approximately $ 200 per month as a field secretary for a hospital association. For a short time after their marriage they lived at petitioner's home, but in July, 1924, went to housekeeping at No. 104 W. Susquehanna Avenue in a rented house, a portion of which was used by defendant for office and laboratory purposes. Within a comparatively short time unfortunate differences, apparently largely due to incompatibility of temperament, arose. They consisted of bickerings over money matters, an expression by petitioner of suspicions of infidelity upon the part of defendant and recriminations by him, complaints by petitioner of indifference and neglect, and a general course of conduct in which each seems to have been about equally at fault.

In July, 1924, defendant transferred to petitioner the sum of $ 1,800, which he then had in a savings account, but petitioner testified at the rehearing that it had been exhausted by the purchase of clothing, household furnishings, etc., and payment of counsel fees. In the fall of 1926 defendant reduced petitioner's allowance from approximately $ 55 a week to $ 15 and has contributed nothing toward her support since January 22, 1927, except to pay the rent of the house. His attitude toward his legal liability to support his wife is clearly reflected in that portion of his testimony which reads: "

Q. When did you last give your wife any money?

A. I think it was December, 1926.

Q. And if you can do so, without going into a long discussion of the difficulties between you and your wife, why did you stop?

A. Because she made life, living with her, intolerable.

Q. That is why you stopped?

A. Yes, sir.

Q. You told her, did you not, either in December or January that you would have to get out?

A. Yes.

Q. And did you tell her also you were not going to support her any further?

A. Well, I didn't have to tell her, see, the fact that I didn't give her money was sufficient evidence.

Q. You didn't intend to support her?

A. I didn't intend to.

Q. Did you also tell her you wanted her to get a divorce?

A. I didn't mention divorce, I told her I would not want to live with her.

Q. Didn't you say, 'You get out of here and get a divorce?'

A. No, she brought up the word divorce, she mentioned it that's why she would never give me a divorce."

On January 29, 1927, the defendant withdrew from their residence and after living a short time at a hotel went to reside with his brother. He is still occupying his offices but testified that he " never entered the house" and made no provision for the maintenance of petitioner except to allow her " to remain in the house."

The first hearing was held March 17 and the rehearing on May 9 1927. Between these dates the defendant removed practically all the furniture from the house and placed it in storage. Since the removal of the furniture the petitioner has lived with her sister. The testimony of her physician indicates that she is unable to engage in any continuous occupation and her only resources seem to consist of twenty-five shares of building and loan stock which have been running approximately five years and against which she has a loan of $ 100, and a fund of $ 1,000, the proceeds of matured building and loan stock, which she has reinvested and...