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COMMONWEALTH EX REL. MILLER v. MILLER (07/13/54)

July 13, 1954

COMMONWEALTH EX REL. MILLER
v.
MILLER



COUNSEL

James J. Davis, Pepper, Bodine, Stokes & Hamilton, Philadelphia, for appellant.

John Pemberton Jordan, Philadelphia, for appellee.

Ross, Acting P. J., and Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 176 Pa. Super. Page 65]

WRIGHT, Judge.

This case involves an action for support filed by a wife against her husband. The defense to the action was a separation agreement, which the court below held invalid because it was (1) 'predicated fundamentally to provide for the obtaining of a divorce' and (2) 'palpably unreasonable'. The husband has appealed.

The parties were married on August 4, 1951, and there are no children. Prior to the marriage, the wife had suffered a broken coccyx, for which she was undergoing constant medical treatment. Appellant was aware of this condition, but insisted upon the marriage nevertheless. In October, 1951, while appellee was in a hospital for an operation, appellant asked her for a divorce, and, after appellee's return home, kept insisting upon getting a divorce. According to his testimony, the happy period of the marriage 'lasted hardly the first month'. In June 1952, appellee consulted an attorney because appellant told her 'he was going to clean the checking account out'. The parties continued to live together until December of that year, following the execution of the separation agreement

[ 176 Pa. Super. Page 66]

    in question. After the usual preliminary clauses, the agreement provided as follows:

'4. The husband agrees to pay to the wife the sum of Twenty-eight hundred fifty ($2850.00) Dollars as follows:

'The husband will pay Three hundred fifty ($350.00) Dollars on the signing of this agreement.

'The husband will pay the balance of Twenty-five hundred ($2500.00) Dollars at the signing of this agreement, which sum, however, shall be deposited in a special account in the joint names of James J. Davis, Jr., Esq. attorney for the husband, and J. Arthur Ewing, Esq., attorney for the wife, in escrow, and they are to pay the wife the sum of Twenty ($20.00) Dollars per week from the signing of this agreement until a final decree in divorce shall be entered by the Court of Common Pleas of Philadelphia County, in a suit for divorce brought by either party to this agreement, and upon the entering of such final decree, shall pay to the wife whatever balance shall then remain in said account. The first payment of Twenty ($20.00) Dollars shall be made upon the signing of this agreement and the other payments weekly thereafter.

'5. If, for any reason, the Court shall refuse to enter a decree in divorce in the suit instituted by either party, then any balance remaining in said ...


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