Hervey B. Smith and Smith & Eves, Bloomsburg, for appellant.
Donald A. Lewis, Catawissa, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 172]
This is an appeal by Bertelle B. Brobst, wife of the defendant, John C. Brobst, from an order of the Court of Quarter Sessions of Columbia County vacating an order of support previously entered against defendant.
On March 27, 1950, appellant instituted proceedings against defendant for nonsupport. After hearing, the court directed defendant to pay appellant $60 per month.
On August 14, 1950, defendant filed his complaint in divorce against appellant charging adultery. The master to whom the matter was referred recommended a decree of divorce be granted on that ground. Exceptions were dismissed and the Court of Common Pleas of Columbia County entered a decree of divorce. The present appellant (defendant in the divorce action) then appealed to this Court. We reversed the decree and dismissed the complaint, as we found that John C. Brobst, the plaintiff in the divorce action and defendant in the nonsupport proceedings, 'was likewise guilty of adultery,' and that the court below erred in concluding the defense of recrimination was not established. Brobst v. Brobst, 1952, 171 Pa. Super. 499, 90 A.2d 320.
On October 20, 1952, defendant filed a petition in the Court of Quarter Sessions of Columbia County for modification of the support order which had been entered on March 27, 1950. The petition set forth that
[ 173 Pa. Super. Page 173]
defendant's financial condition had changed, and that the prosecutrix (appellant) had committed adultery with one Louis Gazda on August 13, 1950. At the hearing on the petition to modify on November 21, 1952, testimony was introduced as to defendant's earnings, and the record of the divorce action at No. 372, May Term, 1950, in the Court of Common Pleas of Columbia County, and in the Superior Court at No. 34, February Term, 1952, was offered in evidence.
On February 16, 1953, the court below found that 'the prosecutrix [appellant] did commit adultery with one Louis Gazda on the 13th day of August, 1950, which date is subsequent to the entry of the order of support * * *,' and vacated and set aside the support order. See Act of June 19, 1939, P.L. 440, No. 250, 17 P.S. § 263.
Appellant on appeal to this Court questions the sufficiency of the evidence on the hearing for modification of the support order to warrant the court's finding that she had committed adultery, and contends that the court below in entering the order to vacate abused its discretion. The evidence was clearly sufficient to justify the court's action. It appears appellant and a man by the name of Louis Gazda spent several hours in a tourist cabin between Almedia and Lime Ridge in Columbia County on August 13, 1950. Defendant testified that they entered this cabin after midnight on August 12, 1950, and occupied it until 9 a. m. on August 13, 1950. Other witnesses testified that appellant came out of the cabin, got in her car and drove away about 9 o'clock on the morning of the 13th, and that shortly thereafter Louis Gazda came out ...