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COMMONWEALTH EX REL. MITTERLING v. MITTERLING (09/12/63)

September 12, 1963

COMMONWEALTH EX REL. MITTERLING
v.
MITTERLING, APPELLANT.



Appeal, No. 88, Oct. T., 1963, from order of Court of Quarter Sessions of Delaware County, March T., 1963, No. F-8-9, in case of Commonwealth ex rel. Marie Ruth Mitterling v. Robert Carl Mitterling. Order affirmed.

COUNSEL

Edmund P. Hannum, for appellant.

Anna R. Iwachiw, Assistant District Attorney, with her Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Woodside

[ 201 Pa. Super. Page 539]

OPINION BY WOODSIDE, J.

This is an appeal from an order of support entered in favor of a wife and two children. The action was brought under § 733 of The Penal Code of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4733.

[ 201 Pa. Super. Page 540]

The parties separated March 26, 1961. The wife and three children, ages 18, 15 and 9, remained in the family home, and the father, a physician, left it to reside at his office. After the separation, the defendant paid most of the expenses related to the premises in which his family resided and paid $100 a week to his wife for her and their children's support. When the oldest child entered college, the defendant assisted him, but reduced the weekly payments for the support of his wife and the other two children to $80. The wife then brought this action, and after hearing the court entered an order against the defendant in the amount of $125 a week plus certain expenses in connection with the above residential premises owned jointly by the defendant and his wife. The defendant appealed. His gross income exceeds $30,000 a year. The amount of the order is reasonable under the evidence.

The defendant contends that he has continued to maintain his wife and children after the separation, and, therefore, no order should have been entered against him. Section 733 of The Penal Code, supra, provides: "If any husband, or father, being within the limits of this Commonwealth, 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..." action may be brought against him under the section.

The defendant separated himself from his wife and children and, as we read the record, he orally waived any right to claim that he had "reasonable cause" for leaving his family and he submitted to the jurisdiction of the court for the determination of the amount of the order. The court, presumably on the basis of this waiver, found that the defendant had deserted his family. We might dispose of the case on the basis of this waiver, but as there may have been a misunderstanding among the parties and the court on what was intended by the

[ 201 Pa. Super. Page 541]

    oral statements made by counsel at the hearing, we prefer to ignore this point, and dispose of the case on the ...


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