Commonwealth ex rel. Pinkenson v. Pinkenson

• Decision Date: 08 March 1948
• Docket Number: 2521
• Citation: 57 A.2d 720,162 Pa.Super. 227
• Parties: Commonwealth ex rel. Pinkenson, Appellant, v. Pinkenson
• Court: Pennsylvania Superior Court

57 A.2d 720

162 Pa.Super. 227

Commonwealth ex rel. Pinkenson, Appellant, v. Pinkenson

No. 2521

Superior Court of Pennsylvania

March 8, 1948

Argued November 10, 1947.

Appeal, No. 23, Oct. T., 1948, from order of M. C., Phila Co., Sept. T., 1947, No. 2401, in case of Commonwealth ex rel. Helen Pinkenson v. Samuel L. Pinkenson.

Desertion and nonsupport proceeding. Before Schmidheiser, J.

Order entered dismissing petition. Relatrix appealed.

Richard B. Malis, with him David S. Malis, for appellant.

Louis M. Cohen,with him Abraham L. Freedman and Wolf, Block, Schorr & Solis-Cohen, for appellee.

Rhodes P. J., Hirt, Dithrich, Ross, Arnold and Fine, JJ. (Reno, J absent).

OPINION

HIRT J.

In this proceeding, the wife's petition for an order on her husband for support was dismissed by the lower court, but only after serious consideration of all of the testimony. A judge who sees and hears the witnesses in a case such as this is in better position than we to decide the issue on its merits (Com. ex rel. Goldstein v. Wm. Goldstein, 105 Pa.Super. 194, 160 A. 158) and our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion. Com. ex rel. Myerson v. Myerson, 160 Pa.Super. 432, 51 A.2d 350. The order of the lower court here is clearly supported by the evidence and will be affirmed.

The parties were married on February 20, 1945, in Leesville, Louisiana, while the respondent was in military service. He is sixteen years older than his wife. Following their marriage they lived together near a number of military camps throughout the south where respondent was stationed from time to time. When he was discharged from the army, on age, in September 1945, the parties came to live in Philadelphia where respondent had lived and was employed when inducted into the service. On his return he resumed teaching in a girl's school and also conducted a retail women's apparel shop in Philadelphia in partnership with his brother. Immediately after moving to Philadelphia their marital troubles began. Relatrix left her husband on two occasions thereafter, the last on May 9, 1947.

This proceeding was brought under section 733 of the Act of June 24, 1939, P. L. 872, 18 PS 4733. Since this statute, in substance, is a reenactment of the Act of April 13, 1867, P. L. 78 (Com. v. Shankel, 144 Pa.Super. 476, 19 A.2d 493), rules of construction of the prior Act are equally applicable to the present statute. Where a wife seeking support has left her husband, the issue is whether he has neglected to maintain her "without reasonable cause". A voluntary withdrawal of a wife from her husband without adequate legal reason defeats her right to support. Com. of Pa. v. Bachman, 108 Pa.Super. 422, 164 A. 833. This has always been the rule. As to the husband, the only "reasonable cause" justifying his refusal to support his wife is conduct on her part which would be a valid ground for a decree in divorce. Commonwealth v. Henderson, 143 Pa.Super. 347, 17 A.2d 692. But a wife who has withdrawn from the marital domicile, on seeking support is not held to that high degree of proof and need not establish facts which would entitle her to a divorce. It is sufficient if she justifies living apart from her husband for any other reason adequate in law. Thus in Commonwealth v. Jageman, 159 Pa.Super. 52, 46 A.2d 738, an insane wife when paroled from an institution where she had received treatment, went to the home of her father. In the appeal in that support proceeding we said: "If she lives away from her husband because she blames him for her commitment to the asylum, or because she has lost affection for him, or if returning home is distasteful to her, she is not entitled to support. On the other hand, if living with her father is a necessary measure for her recovery from her mental disease, the husband is as much liable for her support during such cure as if she was physically ill in some hospital or mentally ill in the asylum". In Com. ex rel. Whitney v. Whitney, 160 Pa.Super. 224, 50 A.2d 732, we held that a wife seeking support must establish facts sufficient to enable her to secure a divorce. The testimony was ample in that case to meet that high degree of proof and no one was injured by the ruling. However, the Whitney case is not to be regarded as authority for any change in the established rule as to the burden on a wife seeking support, while living apart from her husband, without his consent.

Relatrix at the time of the hearing in this case, was suffering from a nervous disorder according to her physician's testimony and a psychiatric examination ordered by the court confirmed that diagnosis. Although the parties professed fondness for each other there undoubtedly was a clash of temperaments and the respondent was not wholly blameless. But the court was...