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COMMONWEALTH EX REL. GLENN v. GLENN (09/15/66)

decided: September 15, 1966.

COMMONWEALTH EX REL. GLENN
v.
GLENN, APPELLANT



Appeal from order of County Court of Philadelphia, Dec. T., 1965, No. 5352, in case of Commonwealth ex rel. Ann Glenn v. Robert S. Glenn.

COUNSEL

Eugene John Lewis, for appellant.

Sadie T. M. Alexander, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Hoffman, J., would affirm on the opinion of the court below.

Author: Wright

[ 208 Pa. Super. Page 207]

This is an appeal by Robert S. Glenn from an order of the County Court of Philadelphia, entered January 19, 1966, requiring him to pay to his wife, Ann Glenn, the sum of $60.00 per week for the support of their three children, Robert born May 7, 1950, Sandra born August 22, 1954, and James born October 11, 1956. We are not concerned with the amount of the order. The issue before us is whether any order should have been entered under the circumstances.

The question raised by this appeal is one which has been presented with increasing frequency. It is thus stated in appellant's brief: "Can a husband who is living with his wife and children be charged with neglect when he furnishes food, pays rent, utilities and telephone, medical and dental bills and contributes to the clothing and personal needs of his children." Counsel for appellee states the question to be whether there was "sufficient evidence produced to support the finding of the court below that there was failure to support".

[ 208 Pa. Super. Page 208]

Section 733 of The Penal Code*fn1 provides for the entry of a support order "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". As stated in Commonwealth v. Peters, 178 Pa. Superior Ct. 82, 113 A.2d 327, a husband may be prosecuted under this section although there is no proof of desertion, provided there is neglect to maintain. However, it has not been our usual policy to sanction the entry of a support order where the parties are living together. In the words of Mr. Justice Patterson in Commonwealth v. George, 358 Pa. 118, 56 A.2d 228: "The arm of the court is not empowered to reach into the home and to determine the manner in which the earnings of a husband shall be expended where he has neither deserted his wife without cause nor neglected to support her and their children . . . The statute was never intended to constitute a court a sounding board for domestic financial disagreements, nor a board of arbitration to determine the extent to which a husband is required to recognize the budget suggested by the wife or her demands for control over the purse strings".

In its practical aspect, the issue is the extent to which we may go in regulating the financial affairs of a family living, eating and sleeping together. The entry of a support order was approved in Commonwealth ex rel. Turner v. Turner, 192 Pa. Superior Ct. 502, 161 A.2d 922, wherein the husband's only contribution to the table was a payment of $9.00 in a three-week period. His wife and child were compelled to eat their meals at the home of the wife's mother. On the other hand, in the subsequent case of Commonwealth ex rel. Hamilton v. Hamilton, 199 Pa. Superior Ct. 255, 184 A.2d

[ 208 Pa. Super. Page 209361]

, in an opinion by Judge (now President Judge) Ervin, we reversed an order of support where the parties were living together. There was a concurring opinion by Judge Woodside, joined by President Judge Rhodes and the writer, wherein the following pertinent statement appears: "The law does not contemplate that the courts should attempt to solve the financial difficulties of a husband and wife who are living together. Although the majority has advanced sufficient reasons for reversing the order of support after it examined the family financial problems, I believe the order should be set aside solely on the more basic ground that the court should not attempt to allocate the husband's pay check to the family bills when the husband and wife are living together. This, it seems to me, is the rule established by Commonwealth v. George, 358 Pa. 118, 123, 56 A.2d 228 (1948). This rule might be subject to a few exceptions, as, for example, where a husband and father has been regularly drinking his pay before paying the grocer, but certainly the case before us here has nothing to take it out of the general rule".

In Commonwealth ex rel. Mitterling v. Mitterling, 201 Pa. Superior Ct. 538, 193 A.2d 618, speaking for a unanimous court, Judge Woodside restated the general rule as follows: "Although there are exceptions . . . the court will not ordinarily reach into the home to determine the manner in which the earnings of a husband shall be expended . . . It is impractical, if not impossible, for a court to take sufficient testimony on specific expenditures for living expenses to make an intelligent finding on the adequacy of the support furnished by the head of a household to the other members of the household". See also Commonwealth ex rel. Decker v. Decker, 204 Pa. Superior Ct. 156, 203 ...


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