Commonwealth v. Turnblacer

• Decision Date: 28 December 1956
• Citation: Commonwealth v. Turnblacer, 183 Pa.Super. 41, 128 A.2d 177 (Pa. Super. Ct. 1956)
• Parties: COMMONWEALTH of Pennsylvania v. Dr. Charles B. TURNBLACER, Appellant.
• Court: Pennsylvania Superior Court

128 A.2d 177

183 Pa.Super. 41

COMMONWEALTH of Pennsylvania v. Dr. Charles B. TURNBLACER, Appellant.

the Superior Court of Pennsylvania

December 28, 1956

Submitted November 13, 1956

Appeal, No. 201, April T., 1956, from order of Court of Quarter Sessions of Butler County, March T., 1956, No. Ms. D 10, in case of Commonwealth v. Dr. Charles B. Turnblacer. Order affirmed.

Proceeding upon petition of defendant to vacate support order previously entered. Before MCKAY, J., specially presiding.

Order entered directing defendant to pay stated monthly amount for his wife's support. Defendant appealed.

Order affirmed.

Carmen V. Marinaro, for appellant.

Lee C. McCandless, for appellee.

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

OPINION

GUNTHER, J.

This is an appeal from an order of support made by the Quarter Sessions Court of Butler County. The action for support was brought by Agnes Turnblacer against her husband, Dr. Charles B. Turnblacer appellant. On January 7, 1956, the Honorable CLYDE S. SHUMAKER made a temporary order against the husband in the amount of $400.00 per month until further order of court and without prejudice to appellant to proceed on the merits and without determination of the rights of the parties. This temporary order was complied with, and on April 3, 1956, appellant petitioned the court below for the vacation of said order on the ground that the wife had obtained employment as a school teacher and that she was earning $3,600.00 per year.

At the hearing, both parties testified as to the events which led up to the separation as well as to their respective earnings. At the conclusion of the hearing, the court below concluded that the wife was legally justified in leaving the home of her husband and entered an order of $300.00 per month for her support until further order of court. From this order, appellant has taken this appeal alleging that there was no justification for the withdrawal of the wife which entitles her to support and that the order of support was excessive.

As stated in Commonwealth v. Cooper, 183 Pa.Super. 36, decided this day, we are called upon to determine whether there is sufficient evidence to sustain the order of the court below. However, what we there said is equally applicable to the instant case. 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. 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.

The parties were married on July 21, 1941 and resided together until August, 1953, when the husband's conduct became such as to compel the wife to withdraw from marital habitation. In July, 1954, appellant moved out of the apartment they occupied as living quarters on the third floor of the combination home and office building down to the second floor which was used as a hospital, where he continued to stay until January 13, 1955. On that date he moved back to the apartment on the third floor on the advice of his counsel, a fact which he did not deny. His reason for returning was not to effect a reconciliation (R. 24a):

"A. After I saw you, ah - on a Tuesday, then on Thursday morning ah - about 9:15, he came upstairs and announced to me that he was back. And when I had told him that no one had asked him to leave, but I wanted to know what brought...