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COMMONWEALTH EX REL. IEZZI v. IEZZI (04/18/63)

April 18, 1963

COMMONWEALTH EX REL. IEZZI
v.
IEZZI, APPELLANT.



Appeal, No. 35, Oct. T., 1963, from order of County Court of Philadelphia, July T., 1962, No. 2809, in case of Commonwealth ex rel. Emily Iezzi v. Fernando Iezzi. Order affirmed.

COUNSEL

Romolo J. Dicintio, with him Edward W. Furia, for appellant.

Jay H. Tolson, with him Solomon, Tolson & Resnick, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 200 Pa. Super. Page 586]

OPINION BY WRIGHT, J.

This is an appeal by Fernando Iezzi from an order of the County Court of Philadelphia, entered December 5, 1962, requiring him to pay the sum of $70.00 per week for the support of his wife, Emily Iezzi, and their three minor children.

The parties were united in marriage on February 19, 1944. They resided together in a home jointly owned at 2646 Sough 70th Street in the City of Philadelphia. The wife and children still live in that home. The husband is an employe of the General Electric Company, and his admitted gross income is $9,500.00 per year. Prior to August 1960, the wife handled the family finances. An estrangement occurred at that time and the husband admittedly gave his wife no cash money thereafter. On January 8, 1962, the husband ceased sleeping in the home, and returned to it only during the day primarily to deliver such food and clothing as he deemed necessary.

The wife commenced the present proceeding by petition filed July 13, 1962. Following a hearing on October 16, 1962, the court below entered an order of $50.00 per week for the support of the wife and three children. Because of the husband's contention that he had not been accorded a full hearing, the court below, on October 22, 1962, suspended this order and relisted the case. After a further hearing on November 2, 1962, the order was entered (December 5, 1962) from which the present appeal has been taken. This order also directed the husband to pay the taxes on the home. As pointed out in Commonwealth ex rel. Gutzeit v. Gutzeit,

[ 200 Pa. Super. Page 587200]

Pa. Superior Ct. 401, 189 A.2d 324, such a requirement may properly be included in a support order.

Section 733 of The Penal Code*fn1 provides for the entry of a support order in the event that a husband or father "separates himself from his wife or from his children, or from wife and children, without reasonable cause, or neglects to maintain his wife or children". Appellant's first contention is that he did not separate himself from or neglect to maintain his family. In this connection the court below found as follows: "We have no hesitation in finding as a fact that the husband has separated himself from his wife and children". In support cases the court below is the arbiter of the facts: Commonwealth ex rel. Stanley v. Stanley, 198 Pa. Superior Ct. 15, 179 A.2d 667. Not only is the finding of the court below supported by the evidence, but also it is difficult to perceive how a different finding could have been made on this record. Appellant admittedly did not sleep or eat in the home. He visited it primarily for the purpose of delivering groceries. In answer to the question, "Are you out of the house now, living outside?", Appellant replied, "Yes, sir".

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 ex rel. McCuff v. McCuff, 196 Pa. Superior Ct. 320, 175 A.2d 124. Appellant attempted to discharge his obligation of support by furnishing such groceries as he selected, by buying certain items of clothing for the children and ...


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