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COMMONWEALTH EX REL. DARGES v. DARGES (12/12/63)

December 12, 1963

COMMONWEALTH EX REL. DARGES
v.
DARGES, APPELLANT.



Appeal, No. 260, April T., 1963, from order of County Court of Allegheny County, No. 1096 of 1963, in case of Commonwealth ex rel. Ethel H. Darges v. Paul H. Darges. Order affirmed.

COUNSEL

Edward A. Heights, for appellant.

Alfred James Duff, with him Miller, Hay, Entwisle & Duff, for appellee.

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

Author: Watkins

[ 202 Pa. Super. Page 331]

OPINION BY WATKINS, J.

This is an appeal from an order of the County Court of Allegheny County adjudging the appellant husband, Paul H. Darges, guilty of nonsupport and directing him to pay the sum of $130 per month for the support of his wife, Ethel H. Darges.

The husband does not complain of the amount of the order and the basis of this appeal is his contention that his wife left him without legal justification and without his consent, so that no order of support could be properly made.

The parties were married on November 13, 1943 and lived together until the wife left on September 28, 1962. One daughter, now 19 years of age, was born of this marriage and continues to reside with her father.

The record shows that shortly after 1951 the husband began drinking to excess; that this caused her to become nervous and upset and destroyed the harmony of the household. He was constantly under the influence of alcohol. He joined Alcoholics Anonymous in 1960 and curbed his drinking but became belligerent and moody. She testified that from about May, 1962 until she left him they lived in the same house under the following circumstances: "... From that day on, we never said a word to each other. We were living in the same home, slept in the same bedroom but had no marital relations. The only time or any time he wanted to talk to me, he would leave me notes. If I got 'phone calls, he would write notes who called and who I was to call back. There was never any mouth-to-mouth explanation for anything." She testified that he didn't talk to her except to scold her or say something nasty; that he asked her to leave repeatedly; that he was stingy so that she had insufficient clothing; that he purchased and had delivered to their home obscene films and slides which he solitarily viewed in the basement; and that he struck her occasionally.

[ 202 Pa. Super. Page 332]

We have held that where a wife withdraws from the marital domicile the burden is upon her to establish that her husband's conduct justified her leaving him or that he consented to the separation in order to entitle her to support. She need not establish facts which would entitle her to a divorce; it is sufficient to justify a living apart if she shows an adequate reason in law. Com. v. Sgarlat, 180 Pa. Superior Ct. 638, 121 A.2d 883 (1956); Com. ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A.2d 833 (1961).

The only legal ground that would justify a refusal by a husband to support his wife is conduct on her part which would be valid grounds for divorce. Com. ex rel. Reddick v. Reddick, ...


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