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COMMONWEALTH v. SANDERS (09/11/58)

September 11, 1958

COMMONWEALTH
v.
SANDERS, APPELLANT.



Appeal, No. 51, March T., 1958, from order of Court of Quarter Sessions of York County, June T., 1957, No. 48, in case of Commonwealth of Pennsylvania v. Curvin J. Sanders. Order affirmed.

COUNSEL

Norman T. Petow, for appellant.

Frank B. Boyle, District Attorney, for appellee.

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

Author: Watkins

[ 187 Pa. Super. Page 495]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Quarter Sessions of York County directing the appellant, Curvin J. Sanders, to pay $22.50 per week for the support of his wife, Winnie Sanders, until further order of court.

[ 187 Pa. Super. Page 496]

The parties were married on March 9, 1936. They have one married son. The husband is employed as a truck driver and has been so employed for the past 11 years. They separated on August 25, 1950.

The record discloses a conflict as to the cause of the separation. The wife contends that the separation was brought about by her husband's excessive drinking. The husband claims he left his wife because of a picture taken of her and a Mr. Frock in an affectionate pose.

The wife denies that the picture was the cause of the separation, yet, admits that two months later she spent the night with Mr. Frock. There is ample evidence in the record to support the charge of adultery against the wife. Connor v. Connor, 168 Pa. Superior Ct. 339, 77 A.2d 697 (1951). This adulterous relationship continued for four or five years after its inception. There is no question that during this time the husband had good cause for divorce and at that time had no duty to support his wife. Com. v. Callen, 165 Pa. Superior Ct. 163, 67 A.2d 610 (1949). But during this entire time he never brought any action and she did not seek support. Nor from the time of the separation did he contribute anything to the support of his wife. The wife testified, that although they had not lived together since the separation of August 25, 1950, that two months prior to this hearing she and her husband spent several week-ends together at her place and some week-ends at his place. The husband denied this but admits to conversations, in person and by telephone, during that period, concerning reconciliation.

The question before us is whether this testimony is sufficient to find a condonation by the husband of the wife's adultery so that he has abandoned his defense ...


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