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

decided: September 17, 1964.

COMMONWEALTH EX REL. KORN, APPELLANT,
v.
KORN



Appeal from order of County Court of Philadelphia, July T., 1963, No. 2783, in case of Commonwealth ex rel. Jean Goldfarb Korn v. Elias Korn.

COUNSEL

Norman P. Zarwin, with him William L. Meritz, and Zarwin, Prince & Baum, for appellant.

William A. Robbins, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J. Montgomery, J., would affirm on the opinion of the lower court.

Author: Woodside

[ 204 Pa. Super. Page 154]

This is an appeal from the refusal of the County Court of Philadelphia to enter an order against the defendant for the support of his wife.

Section 733 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 4733, provides, inter alia: "If any husband, . . . separates himself from his wife . . . without reasonable cause, or neglects to maintain his wife . . . (1) his wife . . . may file a petition, . . . in the court of quarter sessions. . . .

"The said court, after hearing in a summary proceeding, may order the person against whom complaint has been made or petition filed, being of sufficient ability, to pay such sum as said court shall think reasonable and proper for the comfortable support and maintenance of the said wife . . .".

The Korns, both divorcees, were married September 24, 1961. The court below found they separated May 7, 1963, although they slept together frequently after that date, the last time being two days before the support hearing in this case.

The court below concluded that Mrs. Korn was guilty of indignities, giving the defendant ground for divorce, and that he was therefore not required to support her. A husband is required to support his wife unless he can prove with evidence that is clear and convincing that his wife's conduct relieved him from the responsibility. Commonwealth ex rel. Reddick v. Reddick, 198 Pa. Superior Ct. 111, 115, 181 A.2d 896 (1962).

We have examined the evidence and are of the opinion that the defendant has not met the burden resting upon him to show such conduct on the part of his wife. The hearing judge concluded that the conduct of the defendant's wife constituted indignities. The court based this conclusion on the testimony of the defendant alone. Much of this testimony was

[ 204 Pa. Super. Page 155]

    denied and some of it does not seem credible to us, but even if ...


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