James J. McGinnis, Benjamin L. Long, Thomas B. Moreland Porter, Jr., all of Philadelphia, for appellant.
High, Swartz, Flynn & Roberts and Gilbert P. High, all of Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 560]
Appellant contends that the court below erred in entering upon him an order for support of his wife 'without first finding that the defendant had neglected to maintain' her. He submits 'that the primary question in the instant case is not what sum the court should enter as an order, but whether it has power under the evidence to enter an order in any sum.'
The proceeding having been instituted by the issuance of an information under § 733 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4733, and counsel for the parties having stipulated of record that 'The question to be determined by the Court is whether the defendant * * * has neglected 'to maintain his wife' * * *' -- the question of whether he had separated himself from her 'without reasonable cause' not being at issue -- appellant
[ 170 Pa. Super. Page 561]
argues that the trial court must find as a fact that the defendant has neglected to maintain his wife before it can enter an order on him for her support.
In the words of Knight, P. J., for the court en banc: 'We are not aware that in cases of this kind the hearing judge or the Court en banc is required to make findings of fact.' Nor are we aware that it is error for the court to 'substitute its judgment for that of the husband' as to what constitutes neglect 'to maintain', as provided by the Penal Code. Appellant advances the bizarre thesis that 'the learned court below had no power * * * to substitute its judgment for that of the husband * * * as the basis of an order of support and erred when it did so.'
Section 733 of the Penal Code, supra, provides in part that 'The said court [of quarter sessions], after hearing in a summary proceeding, may order the person against whom complaint has been made, being of sufficient ability, to pay such sum as said court shall think reasonable and proper for the comfortable support and maintenance of the said wife * * *.' (Emphasis added.)
As stated in Commonwealth v. George, 358 Pa. 118, 122, 123, 56 A.2d 228, 230: 'Section 733 of the Criminal Code, supra, is to be distinguished from Section 731 * * * in that the purpose of the latter is punishment for failure to support a wife or children, whereas the former, with which we are here concerned, was not to punish the husband, but to secure reasonable allowance for support of the wife and family consonant with the husband's property, income, earning capacity, and the family's condition in life. Jones v. Jones, 348 Pa. 411, 415, 416, 35 A.2d 270; Commonwealth ex rel. ...