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COMMONWEALTH EX REL. GOODWIN v. GOODWIN (03/17/64)

March 17, 1964

COMMONWEALTH EX REL. GOODWIN
v.
GOODWIN, APPELLANT.



Appeal, No. 269, Jan. T., 1963, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1961, No. 315, in case of Commonwealth ex rel. Margot Goodwin v. Howard Goodwin. Order affirmed.

COUNSEL

Samuel P. Lavine, with him Steinberg, Steinbrook, Lavine & Gorelick, for appellant.

Morris Gerber, with him Louis M. Cohen, and Wisler, Pearlstine, Talone & Gerber, and Wolf, Block, Schorr and Solis-Cohen, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: O'brien

[ 413 Pa. Page 552]

OPINION BY MR. JUSTICE O'BRIEN

On January 2, 1962, relatrix-appellee filed a petition against her husband, respondent-appellant, seeking support for herself and the two children of her marriage to appellant. After a hearing and protracted negotiations, the court, on May 2, 1962, entered an order, agreed to by the parties, calling for support payments of $300 per week.

[ 413 Pa. Page 553]

On August 27, 1963, appellant filed a petition to reduce the order, alleging that his income had been drastically reduced. By an amended petition, he further sought to have vacated the portion of the order requiring support payments for his wife, on the ground that it had been obtained by fraud.

The court of quarter sessions, without taking testimony, dismissed the petition to vacate and denied the petition to reduce "until such time as [it] deems [appellant] to be purged of contempt". The reasoning of the court is well summarized in its opinion as follows: "The defendant contends that the Court should have allowed testimony to be presented on both Petitions. The theory behind the first offer of proof is that the original support Order as to the wife was obtained by the wife's fraudulent inducement. He contends that his reliance on her denials of improper conduct caused him to allow the Order to be entered and that this conduct on her part amounts to fraud which warrants this Court to vacate the Order as to her.

"As authority for this argument, he cites Commonwealth v. Levitz, 189 Pa. Superior Ct. 438 (1959). We do not believe that the Levitz Case is authority for the proposition which defendant asserts. In that case the Superior Court, after finding that there was sufficient evidence of the wife's adultery before the lower Court, ordered that the Order for the support of the wife be vacated. The defendant husband had specifically opposed the entry of the original Order on the grounds that the wife was guilty of adultery. The wife specifically denied on the stand that she had any intimate association with the certain party and the lower Court in entering the Order for the support of the wife specifically found that adultery had not been proved. Thereafter, a Petition to revoke the original Order was filed and the party with whom the wife had allegedly committed adultery, produced letters which clearly established

[ 413 Pa. Page 554]

    the fact of adultery. The lower Court dismissed this Petition and the Superior Court, after finding that the lower Court had abused its discretion, stated at page 444 as follows: "The wife obtained the original Order of ...


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