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COMMONWEALTH EX REL. MCCUFF v. MCCUFF (11/16/61)

November 16, 1961

COMMONWEALTH EX REL. MCCUFF
v.
MCCUFF, APPELLANT.



Appeal, No. 254, Oct. T., 1961, from order of Municipal Court of Philadelphia County, Jan. T., 1961, No. 131, in case of Commonwealth ex rel. Armissie McCuff v. Azell McCuff. Order affirmed.

COUNSEL

Henry N. Fineman, with him Morris Passon, for appellant.

G. Wesley Allen, for appellee.

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

Author: Wright

[ 196 Pa. Super. Page 321]

OPINION BY WRIGHT, J.

This is an appeal by Azell McCuff from an order of the Municipal (now County*fn1 ) Court of Philadelphia County entered April 17, 1961, requiring him to pay the sum of $30.00 per week for the support of his wife, Armissie McCuff.

The parties were united in marriage on March 20, 1943, and have one child, a daughter now married. They resided together in a home, jointly owned, at 8213 Tinicum Avenue, in the City of Philadelphia. The wife still resides in that home. Sometime in October of 1956, following several arguments concerning the husband's intimacy with another woman, the husband left the common

[ 196 Pa. Super. Page 322]

    habitation and has since been living with his paramour. The husband took care of the remaining installments which were due on the mortgage, so that the home is now unencumbered. He also continued to pay the bills for fuel and utilities until June 29, 1960, on which date the daughter became eighteen years of age. The wife's petition for support was filed on January 11, 1961. There were four hearings in the court below. At the hearing on March 20, 1960, it was agreed by counsel that any order eventually entered should be effective as of that date.

Appellant first contends that his wife's misconduct "rendered her unworthy of support", asserting in this connection that his wife was guilty of adultery. The law is well settled that the only legal cause justifying the refusal of an order of support is conduct on the part of the wife which would constitute valid grounds for a divorce: Commonwealth v. Deose, 194 Pa. Superior Ct. 466, 168 A.2d 791; Commonwealth v. Sincavage, 153 Pa. Superior Ct. 457, 34 A.2d 266. It is of course true, as appellant argues, that an order of support may be refused, or vacated, where the wife is guilty of infidelity, notwithstanding the fact that the husband is likewise guilty of misconduct which precludes him from obtaining a divorce. See Commonwealth ex rel. Brobst v. Brobst, 173 Pa. Superior Ct. 171, 96 A.2d 194; Commonwealth v. Levitz, 189 Pa. Superior Ct. 438, 150 A.2d 581. In the case at bar, however, the evidence is clearly insufficient to establish adultery on the part of the wife. To sustain such a charge the proof of guilt must be clear and satisfactory: Brower v. Brower, 157 Pa. Superior Ct. 426, 43 A.2d 422. Mere speculation is not enough: Commonwealth v. Donald, 192 Pa. Superior Ct. 276, 161 A.2d 915. The husband's contention is based primarily on two incidents, one on February 24, 1954, and one on October 3, 1956. His accusations of impropriety on

[ 196 Pa. Super. Page 323]

    these, or any other occasions, were strenuously denied by the wife, and her testimony was supported by that of her daughter and the daughter's husband. We are in accordance with the conclusion of the court below "that the proof falls short of any ground for ...


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