Commonwealth v. Henderson

• Decision Date: 30 January 1941
• Docket Number: 14-1941
• Parties: Commonwealth v. Henderson, Appellant
• Court: Pennsylvania Superior Court

17 A.2d 692

143 Pa.Super. 347

Commonwealth v. Henderson, Appellant

No. 14-1941

Superior Court of Pennsylvania

January 30, 1941

Argued October 7, 1940.

Appeal from order of Q. S. Wayne Co., June Sessions, 1939, No. 63 in case of Commonwealth v. Norman Henderson.

Proceeding for support. Before Swoyer, P. J.

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

Order entered directing specified amount of support, retroactive to stated date. Defendant appealed.

Error assigned, among others, was order directing payment of support.

Order as modified, affirmed.

Milford J. Meyer, with him Louis A. Fine, for appellant.

Clement J. Reap, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Stadtfeld, J.

This is a proceeding for support under the provisions of the Act of April 13, 1867, P. L. 78 and its supplements (18 PS § 1251 et seq.). ^[1]

The warrant was issued July 1, 1939, on oath of Ruth Henderson charging her husband, Norman Henderson, with desertion and non-support. The transcript of the justice of the peace shows that according to the testimony of Ruth Henderson, the parties were married in 1914 and lived and raised a family together until 1939. They owned a house situated in Honesdale, by entireties, but which was subject to a mortgage. The husband fell behind in the payments and to prevent foreclosure, the parties, on January 25, 1939, sold the property and divided the proceeds, each receiving one-half amounting to $ 1123.70. The purchaser was to take possession on March 1st following.

The parties lived together until February 6, 1939, when the relatrix left the common domicil because the defendant was running around with other women. She testified at the hearing in the Court of Quarter Sessions that she had put up with all she could and had to get out; that she lived thereafter in Carbondale, where her husband had been employed for many years. She further testified that she afterwards "about two months ago" asked her husband to make a home for her. "I told him he better 'wise up' and come back home. I asked him if he would be willing to give me something toward support and he said he didn't have to; said he didn't have to support me. Q. Did you tell him you would be willing to go back and make a home? A. Sure I would be willing to go back and make a home." She testified that before the separation, her husband had been running around with different women and in particular with a Mrs. Ralph Langandorfer. She saw him with this woman on three occasions before she left him.

She testified that after the home was sold, he didn't make any provision to rent another place until just before she was going to move. She then testified, "He said, 'There is a place over here on Main Street we will look after' and I said 'You don't need to bother looking for a place the way things are going here I will never stay here in Honesdale' and I didn't. Q. And after that you asked him to make a home for you and he said he would not? A. Uhuh. .... I said 'Any place but Honesdale, I will go.' .... Q. Why did you tell him that? A. The way he was running around. Q. With whom? A. Mrs. Langandorfer."

Two other witnesses, a married daughter of the parties and the daughter's husband testified that on numerous occasions in 1938, the defendant was seen with other women and on at least one occasion he was observed in a parked car at night with his arms around the Langandorfer woman. They saw him several times with her in beer gardens and dancing places.

At the hearing before the justice of the peace and in the Court of Quarter Sessions, the defendant was present but did not testify, so that the testimony of Mrs. Henderson and her witnesses stands uncontradicted.

It appeared from Mrs. Henderson's testimony that while the parties lived together, the defendant paid her $ 40 per month toward running the home; that he is working now for the Delaware and Hudson Corporation, as a car repairman; and that he has worked during the last five or six years, about three or four days a week. The defendant did not see fit to enlighten the court as to his actual earnings. The court below fixed the sum of $ 40 per month as just and reasonable under the circumstances.

The contention of appellant is that by reason of his wife's leaving him, he is not required to support her. It is well established, however, that the only "reasonable cause" justifying a husband in refusing to support his wife is conduct on her part which would be a valid ground for a decree in divorce: Com. ex rel. Herman v. Herman, 95 Pa.Super. 510; Com. ex rel v. Goldstein, 105 Pa.Super. 194, 160 A. 158. Upon consideration of the testimony as a whole, we think the...