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COMMONWEALTH v. OLDHAM (07/21/55)

July 21, 1955

COMMONWEALTH
v.
OLDHAM, APPELLANT.



Appeal, No. 28, Oct. T., 1955, from order of Court of Quarter Sessions of Bradford County, May T., 1954, No. 67, in case of Commonwealth of Pennsylvania v. Richard Oldham. Order affirmed.

COUNSEL

James W. Cullen, for appellant.

C. Wayne Smyth, for appellee.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Rhodes

[ 178 Pa. Super. Page 355]

OPINION BY RHODES, P.J.

This is an appeal by defendant from the order of the Court of Quarter Sessions of Bradford County directing him to pay the sum of $9 per week for the support of a child born to his wife on September 6, 1953.

The proceeding was brought under section 733 of the Act of June 24, 1939, P.L. 872, as amended, 18 PS ยง 4733. The act provides that the court, "after hearing in a summary proceeding, may order" the father, being of sufficient ability, to pay such sum as the court shall think reasonable and proper for the child's comfortable support and maintenance.

Prosecutrix brought this action to compel her husband to support her child. His defense was that, although

[ 178 Pa. Super. Page 356]

    the child was born to his wife during her coverture, he was not the father. In other words, his defense to rebut the presumption of legitimacy was non-access.

The parties were married on September 19, 1947, and resided in Sayre, Pennsylvania. Subsequently defendant entered the armed forces. After being in service for approximately two years he was discharged in February, 1952. They separated in June, 1952, and defendant went to live with his parents in Elmira, New York. The child was born to the prosecutrix on September 6, 1953. She testified that after the separation defendant returned home on Saturdays between 10 a.m. and 3 p.m:, that he came home practically every Saturday during the remainder of 1952, but less frequently in 1953; that he continued to visit her until May, 1953; and that on two occasions he remained there all night. One of these occasions was shortly after the New Year, 1953. Prosecutrix also testified definitely that defendant was at her home on or about Thanksgiving, 1952.

Defendant's father, mother, brother, and sister testified in his behalf. Their testimony sheds no light on the question of non-access. At most, they merely confirmed the fact of the separation and that defendant lived with his parents subsequent to that occurrence. In reply to a question whether he had ...


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