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COMMONWEALTH v. FAIRMAN (04/13/61)

April 13, 1961

COMMONWEALTH
v.
FAIRMAN, APPELLANT.



Appeal, No. 141, Oct. T., 1961, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1960, No. 87, in case of Commonwealth v. Charles Fairman. Order affirmed.

COUNSEL

Edward I. Weisberg, with him Fox and Fox, for appellant. Herbert M. Linsenberg, with him Meltzer & Schiffrin, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 195 Pa. Super. Page 172]

OPINION BY FLOOD, J.

This is an appeal from a support order of $90 per week entered by the court below for the appellant's wife and two small children.

The court found that the appellant left the common domicile without justification and that his return two days before the hearing was not in good faith. It found further that his net income was $225 per week, that he was paying an average of $60 per week toward maintaining the home, including the mortgage, and $52 per week on certain notes which were either partially or wholly for household appliances.

There is competent testimony in the record to support all these findings.

1. As to whether the defendant's return was in good faith, his counsel at the hearing stated that he did not contest the wife's right to an order in some amount; that he moved back in again on November 11th but moved out again in a day or two, and moved back in again on December 27th, two days before the hearing. We cannot say that the trial judge's finding that defendant separated himself without good cause and that his latest return was not a good faith return was without basis in the record.

Nor can we say that there was an abuse of discretion in the court's failure to grant a rehearing on this issue on a petition which avers merely that he does not and never did concede his wife's right to support, that he never deserted her or his children or failed to maintain them, and that the statement made by his counsel at the hearing that he was not contesting his wife's right to an order was without authority and without the consent or acquiescence of the petitioner. As to these allegations the hearing judge commented:

"The defendant appeared to the Court to be a man of above average intelligence, he was present throughout

[ 195 Pa. Super. Page 173]

    the hearing, heard his counsel make the representations to the Court respecting the limited scope of the hearing, offered no word of protest from the witness stand concerning the impropriety of the entry of an order of support, and did not ...


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