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COMMONWEALTH EX REL. MILLER v. MILLER (11/17/66)

decided: November 17, 1966.

COMMONWEALTH EX REL. MILLER, APPELLANT,
v.
MILLER



Appeal from order of Court of Quarter Sessions of Delaware County, Dec. T., 1965, No. F-11-37, in case of Commonwealth ex rel. Margaret E. Miller v. Elmer Miller.

COUNSEL

Thomas W. Maher, for appellant.

Joseph R. Young, with him Butler, Beatty, Greer & Johnson, for appellee.

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

Author: Hoffman

[ 209 Pa. Super. Page 197]

This action for support was brought by Margaret Miller against her husband, Elmer Miller, in the Court of Quarter Sessions of Delaware County. At a hearing on October 8, 1965, the trial judge made a temporary award to the wife in the amount of $35.00 per week. After a second hearing on December 10, 1965, however, the court concluded that the wife had withdrawn from the marital domicile without justifiable cause, and, in addition, had refused a bona fide offer of reconciliation. Consequently, the temporary award was revoked and terminated on January 6, 1966. The wife now appeals.

A wife who withdraws from the marriage domicile is entitled to support only if she shows that her husband's conduct justified her leaving, or that he consented to the separation. Commonwealth v. Sgarlat, 180 Pa. Superior Ct. 638, 121 A.2d 883 (1956). But she is not held to the high degree of proof required of the husband and need not establish facts which would entitle her to a divorce; it is sufficient if she justifies living apart from her husband for any reason adequate in law. Commonwealth ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 213 A.2d 135 (1965); Commonwealth ex rel. Woodruff v. Woodruff, 188 Pa. Superior Ct. 320, 146 A.2d 376 (1958).

In the instant case, Mrs. Miller testified that her husband told her to get out and to take the furniture with her. She testified further that he had begun to

[ 209 Pa. Super. Page 198]

    drink a few years ago and that his subsequent conduct had left her in a "pretty nervous state." On the day of her departure, he told her: "I want you to leave, I want you to get out. I have a lawyer, and if you don't, the lawyer will put you out." Her account of these events was not challenged on cross-examination, nor was it later denied by the husband.

On this record, the trial judge's conclusion that the wife withdrew without justifiable cause cannot stand. The evidence adduced in the court below compels a finding that the husband consented to her departure. Furthermore, his conduct left her little choice but to withdraw from the marriage domicile. The instant case is wholly unlike Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A.2d 833 (1961), relied on by the lower court. There, the wife left without her husband's knowledge, in response to an earlier request that was "conditional" in nature. Here, the husband's ultimatum was much stronger than a simple statement that his wife could leave "if she wanted to." In these circumstances, the husband's duty to support and maintain his wife was not terminated by her departure. Commonwealth v. Sincavage, 153 Pa. Superior Ct. 457, 34 A.2d 266 (1943); Commonwealth v. Turnblacer, 183 Pa. Superior Ct. 41, 128 A.2d 177 (1956).

The trial judge further found that the wife forfeited any right to support she may have had by refusing her husband's bona fide offer of reconciliation.

A husband's good faith and sincerity are best measured by his course of conduct before and after the hearing. They are not established by a single offer made transparently for the purpose of escaping liability for support. Commonwealth ex rel. Berry v. Berry, 165 Pa. Superior Ct. 598, 69 A.2d 442 (1949); Hyle v. Hyle, 188 Pa. ...


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