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COMMONWEALTH EX REL. DAVIDOFF v. DAVIDOFF (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. DAVIDOFF
v.
DAVIDOFF, APPELLANT.



Appeal, No. 50, Oct. T., 1955, from order of Municipal Court of Philadelphia, Oct. 1954, No. 3662, D.R. No. 189504, in case of Commonwealth of Pennsylvania ex rel. Pearl Davidoff v. Philip Davidoff. Order affirmed.

COUNSEL

Nochem S. Winnet, with him M. E. Maurer and Fox, Rothschild, O'Brien & Frankel, for appellant.

Morton Witkin, with him Charles F. Nahill and Witkin & Egan, for appellee.

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

Author: Hirt

[ 178 Pa. Super. Page 550]

OPINION BY HIRT, J.

In this proceeding under § 733 of the Act of June 24, 1939, P.L. 872, 18 PS § 4733, the court ordered the defendant to pay $35 per week for the support of his wife. The facts fall into a familiar pattern and no novel legal question is involved. The order will be affirmed.

The parties were both public school teachers in Philadelphia and had been friends for more than six years. But within a few weeks after the wedding ceremony in September 1953 the defendant indicated that he regretted his marriage contract. Marital relations then ceased and he said to her: "I don't want you. I am sorry I ever married you. It was the biggest mistake of my life." In the following December the plaintiff became ill and has since been on sick leave, with the consent of the Philadelphia Board of Education. Counsel, engaged by the plaintiff in an effort to save the marriage met with the parties on May 15, 1954, but without success. The defendant persisted in the stand taken that he wanted his wife to leave him, and

[ 178 Pa. Super. Page 551]

    the conference ended in a separation of the parties by agreement on that date. The plaintiff later took what she regarded as her share of the furniture from the home and in June 1954 filed a complaint in divorce. She has not prosecuted the action further.

Even where a separation is consensual the right of the wife to support continues (Com. ex rel. Glener v. Glener, 173 Pa. Superior Ct. 108, 94 A.2d 102) unless the husband in good faith withdraws his consent by seeking the return of his wife looking toward a resumption of the family relation. Commonwealth v. Sincavage, 153 Pa. Superior Ct. 457, 34 A.2d 266. And the fact that the wife has filed a complaint in divorce does not bar her right to support. Although a wife may be seeking a termination of her marriage contract in an action brought by her, she, unless barred by her conduct, is entitled to support up to the time when a decree in divorce is actually entered. In the meantime she may enforce her right to support in the Municipal Court of Philadelphia under the 1939 Act, as amended, supra, or in the common pleas on an application there for alimony pendente lite. Com. ex rel. v. Maroney, 121 Pa. Superior Ct. 489, 492, 184 A. 289. The only sufficient cause justifying a husband's refusal to support his wife is conduct on her part which would supply him with a valid ground for divorce. Com. ex rel. Myerson v. Myerson, 160 Pa. Superior Ct. 432, 51 A.2d 350; Com. ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 57 A.2d 720. There is no suggestion that the wife is chargeable with such conduct here.

The order in this case was not excessive in amount. The defendant's gross annual salary as principal of a public school is $7,300; he owns real estate in Philadelphia which he valued at $9,000, from which he receives gross annual rentals in the sum of ...


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