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COMMONWEALTH EX REL. SHAPIRO v. SHAPIRO (09/17/64)

decided: September 17, 1964.

COMMONWEALTH EX REL. SHAPIRO, APPELLANT,
v.
SHAPIRO



Appeals from orders of County Court of Philadelphia, April T., 1962, No. 1577, in case of Commonwealth ex rel. Edna Shapiro v. Samuel Shapiro.

COUNSEL

I. Raymond Kremer, with him Marvin D. Weintraub, for appellant.

Michael H. Egnal, with him Egnal and Simons, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Wright, J. Dissenting Opinion by Woodside, J.

Author: Wright

[ 204 Pa. Super. Page 136]

We are here concerned with two appeals by Edna Shapiro from orders of the County Court of Philadelphia in a support proceeding. In the first order, dated December 4, 1963, the court below ruled that appellant was not entitled to support from her husband. The second order, dated January 10, 1964, refused appellant's petition for a rehearing.

Edna and Samuel Shapiro were married on May 22, 1922, and lived together until January 9, 1962, when Mrs. Shapiro left the common home. The extended support proceeding arising from this separation was the subject of twelve hearings in the court below covering the period from June 13, 1962 to October 30, 1963. The voluminous original record, of which we have made a painstaking review, contains over one thousand pages with fifty some exhibits. It fully supports the conclusion of the hearing judge that Mrs. Shapiro's voluntary departure was without adequate legal reason and without the consent of her husband.

[ 204 Pa. Super. Page 137]

In fact, the brief of appellant's present counsel contains the following significant statement: "Appellant then employed her present counsel, who, after reviewing the records, advised her that in order to re-establish her marital and conjugal rights, it would be necessary for her to resume cohabitation with her husband". Appellant's complaint does not relate so much to the original refusal to enter a support order as it does to the denial of the petition for rehearing.

The law governing controversies of this nature is so well settled that it requires merely a brief restatement. The burden is upon a wife who has voluntarily left her husband to establish justification for leaving or that the husband consented to the separation: Commonwealth ex rel. Coleman v. Coleman, 184 Pa. Superior Ct. 256, 133 A.2d 307. In the absence of any legal ground justifying her separation, a wife is not entitled to a support order: Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A.2d 833. Our duty on appeal is to determine whether there is sufficient evidence to sustain the order of the hearing judge: Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A.2d 793. In this connection we adopt with approval the following excerpt from Judge Stout's able and exhaustive opinion:

"Even if Mrs. Shapiro were a credible witness -- which, because of evasiveness, conflicts of testimony and gross exaggeration that approached prevarication, she is not -- she established no adequate legal reason for leaving . . . This separation was not a consentable one . . . Petitioner declared frequently, even to the day of trial, that she neither wanted to live with defendant nor to live in her home even if defendant moved out. In such circumstances, she is not entitled to support".

Appellant's principal contention, evidenced by her statement of the question involved, is that the court below erred in refusing ...


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