Robert E. O'Brien, James E. O'Brien, J. Desmond Kennedy, Scranton, for appellant.
Will Leach, Leach & Lenahan, Scranton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
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The respondent has appealed from an order for the support of his wife entered in a proceeding brought by her under § 733 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4733.
The parties were married in 1920. Children born of the marriage are not involved in this proceeding. Respondent
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established a small retail grocery store in 1923 and, daily for fourteen years, his wife serving as the only clerk, conducted the business from nine in the morning until seven p. m., when respondent relieved her. She did her housework and cared for her family after returning home from the store. Both of the parties were unusually industrious and frugal. Their savings were substantial. They had accumulated $12,000 in one bank account which required both signatures for withdrawal. There were at least three other bank accounts, with balances aggregating almost $12,000 to their credit, from which either could draw. An automobile which they owned was registered in both their names. They also had acquired title to a double house on Bromley Avenue in Scranton, by entireties.
In February 1949 respondent by acts of personal violence and by unfounded accusations of infidelity, insinuating adultery, forced his wife to leave him. The testimony clearly indicates that her reason for leaving was adequate in law. We need not inquire whether his conduct would entitle her to a divorce, for a wife seeking support is not held to that high degree of proof. Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa. Super 227, 57 A.2d 720. Almost immediately after the separation, respondent set out to appropriate to himself as much as possible of the fruits of their joint earnings. He withdrew at least $6,000 (the court found that he had withdrawn $11,964) from bank accounts on his signature alone. He sold the automobile, signing his wife's name to the transfer of title, without authority, and kept the proceeds. He leased the one habitable apartment in the Bromley Street property and has been collecting the rents. He sold his entire stock of groceries, closing out the business, and has not given his wife any part of the proceeds of sale. On a showing of these facts the court entered an order directing the respondent
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to pay his wife $250 monthly for her support. The opinion of the court indicates that the fact that the wife had 'an interest equal to that of defendant' in the funds and property appropriated by him, had much to do with determining the amount of the order. The order obviously was intended to make good to the wife, in some degree at least, her loss from the misappropriation of her interest in property by her husband, in addition to an allowance for her support.
All of the bank accounts were tenancies by the entireties, and the funds withdrawn by the husband were impressed in his hands by the entirety provision that they are the property of both. Appropriation by him did not sever the titles to the fund. Madden et al. v. Gosztonyi Savings & Trust Co., 331 Pa. 476, 200 A. 624, 117 A.L.R. 904. And it may be that the respondent can be required to account to his wife for the withdrawals made by him. Cf. Werle v. Werle, 332 Pa. 49, 1 A.2d 244; Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172. The court however, was without jurisdiction to treat this action for support as one for accounting also and to enter an equitable order in effect directing the restitution of misappropriated property in installments under the guise of a support order. In an action such as this it is not the prerogative of the court ...