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COMMONWEALTH v. COOPER (12/28/56)

December 28, 1956

COMMONWEALTH
v.
COOPER, APPELLANT.



Appeal, No. 6, Feb. T., 1957, from judgment of Court of Quarter Sessions of Luzerne County, June T., 1955, No. 336, in case of Commonwealth of Pennsylvania v. Dr. Joseph Cooper. Judgment affirmed.

COUNSEL

Thomas C. Moore, with him J. Dallas Shepherd, for appellant.

Henry Thalenfeld, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Gunther

[ 183 Pa. Super. Page 38]

OPINION BY GUNTHER, J.

This appeal is from the award of support commenced by criminal proceedings. Appellant, Dr. Joseph Cooper, and appellee, Gertrude Cooper, were married on April 30, 1955. Appellant at the time was age 40 and appellee was age 32. After the honeymoon, they lived together for a period of approximately two months in Wilkes-Barre, Pennsylvania, until July 23, 1955, when they separated. During the time the parties lived together as husband and wife, marital difficulties arose between them. On July 23, 1955, appellee was locked out of her home, and she went to live with her parents.

Attempts at reconciliation having failed, a nonsupport action was commenced and a hearing was held thereon on September 9, 1955. Before an additional hearing could be held on appellant's financial status, the parties resumed living together from September 21, 1955 until December 2m, 1955, when Mrs. Cooper went to the hospital for childbirth. After she left the hospital, she took her child and returned directly to her parents' home where she continued to reside. Hearings on the case were resumed on May 4, 1956 and at the conclusion thereof, appellant was ordered to pay the sum of $350.00 per month for the support of his wife and child. This appeal followed in which appellant challenges the right of the wife to any support whatever on the ground that the wife was not legally justified in leaving her husband. The amount of support is challenged on the ground that it is excessive.

Our duty is to determine whether there is sufficient evidence to sustain the order of hearing judge. Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A.2d 793. In cases such as this, the only legal cause which would justify a refusal by

[ 183 Pa. Super. Page 39]

    the husband to support his wife is conduct of the wife which would support valid grounds for divorce. Commonwealth v. Sgarlat, 180 Pa. Superior Ct. 638, 121 A.2d 883; Commonwealth ex rel. Di Pietro v. Di Pietro, 175 Pa. Superior Ct. 18, 102 A.2d 192. Conversely, where a wife voluntarily leaves her husband, the burden is upon her to establish justification for leaving or that the husband consented to the separation: Commonwealth v. Sgarlat, supra; Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 57 A.2d 720; Commonwealth ex rel. Van Wagenen v. Van Wagenen, 167 Pa. Superior Ct. 354, 74 A.2d 740. However, the wife need not establish facts which would entitle her to a divorce but only facts which would justify her living apart from her husband.

Our review of the record amply sustains the order of the court below. It appears that difficulties arose between the parties almost from the beginning of their marriage. Appellant did not permit his wife to leave the home without his approval, forbade her family from coming into their home. She was constantly reminded that it was his home they were living in, his furniture and his money to maintain the home. He sought to make it clear that he was the master of the home. Prior to the first separation, the husband locked out the wife because she did not return at five o'clock from swimming as he had instructed her to do. She called him at his office to be permitted to enter the home but he refused to talk to her. She then moved in with her parents, and he did not call on her during the first separation. On September 2u, 1955, ...


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