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COMMONWEALTH EX REL. MANDELL v. MANDELL (06/11/57)

June 11, 1957

COMMONWEALTH EX REL. MANDELL
v.
MANDELL, APPELLANT.



Appeal, No. 55, April T., 1956, from order of County Court of Allegheny County, 1955, No. 457, in case of Commonwealth ex rel. Belle Mandell v. Louis L. Mandell. Judgment reversed.

COUNSEL

Norman Landy, with him Norman Paul Wolken, and Wolken & Landy, for appellant.

Elder W. Marshall, with him David B. Fawcett, Griggs, Moreland, Blair & Douglass, and Reed, Smith, Shaw & McClay, for appellee.

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

Author: Gunther

[ 184 Pa. Super. Page 180]

OPINION BY GUNTHER, J.

This appeal is from an order of support made by the County Court of Allegheny County instituted by the wife, Belle Mandell, for herself and minor daughter against her husband, Louis L. Mandell, appellant. The parties were married in 1927 and have two daughters, one of whom is married and the other is eleven years old and living with her mother.

At the time of the marriage, appellant operated a retail ladies' ready-to-wear store in Pittsburgh and was doing moderately well with the aid of his wife who worked there as a bookkeeper. In 1935, a similar store was opened in Wilkinsburg, which his wife managed successfully, while he continued to operate the Pittsburgh store. In 1938, appellant gave up the store at Pittsburgh and thereafter managed the Wilkinsburg store. Before disagreements began, the parties lived nicely and were able to take semi-annual vacations to Florida in the winter and the mountains in the summer. The earnings from the stores were such that he was able to acquire several valuable pieces of real estate, including his home. After the separation on January 11, 1955, the wife continued to reside in the home with her younger daughter and paid for the utilities and one-half of the taxes and insurance. In addition,

[ 184 Pa. Super. Page 181]

    she continued to receive two hundred twenty-five dollars per month from a commercial building which was owned in joint names with her husband, but she was obliged to pay one-half of the taxes, insurance and other expenses of upkeep. The remainder of the properties were in the name of the remainder of the properties

The parties gave different versions as to why they separated in 1955. There was considerable incrimination and recrimination. The husband maintained that he was forced to leave his home because of constant bickerings, certain love letters which he found addressed to his wife and the fact that his wife finally told him to get out. The wife accused the husband of having affairs with another woman. After weighing the conflicts in testimony, the court below concluded that the husband was not justified in refusing to support his wife and child as he was not such an innocent and injured spouse as would warrant a divorce in his favor. At the conclusion of several hearings, on January 13, 1956, a final order for support in the sum of seven hundred dollars per month was entred. From this adjudication, appellant has taken this appeal challenging the finding of wilful desertion and neglect to maintain his wife and also challenging the amount of support as excessive.

Our duty is to determine whether there is sufficient evidence to sustain the order of the hearing judge. Commonwealth v. Cooper, 183 Pa. Superior Ct. 36, 128 A.2d 181; Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A.2d 793. The only legal cause which would justify a refusal of the husband to support his wife is conduct of the wife which would support valid grounds for divorce. Commonwealth v. Cooper, supra; ...


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