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COMMONWEALTH EX REL. KROUSE v. KROUSE (03/24/72)

decided: March 24, 1972.

COMMONWEALTH EX REL. KROUSE, APPELLANT,
v.
KROUSE



Appeal from order of Court of Common Pleas of Montgomery County, Feb. T., 1971, No. 11, in case of Commonwealth ex rel. Adele Krouse v. Morton L. Krouse.

COUNSEL

Martin J. Cunningham, Jr., with him Henderson, Wetherill, O'Hey & Horsey, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 221 Pa. Super. Page 14]

In this appeal wife-appellant maintains that the lower court erred in refusing to enter an order for her support against her husband. Appellant's petition for support was brought pursuant to the Civil Procedural Support Act, the Act of July 13, 1953, P. L. 431, § 1, 62 P.S. 2043.31 et seq.

The facts in the case are not in dispute and are set forth in the lower court's opinion as follows: "[a]t the time of the hearing, the Court made the following findings of fact: '. . . that the defendant, or Mr. Krouse, gave to Mrs. Krouse the parties' jointly-owned property at or about the time of their separation; that Mr. Krouse is currently paying $2,100.00 a year for schooling and transportation for the parties' son; that Mr. Krouse has indicated that he will pay for the college education of the parties' daughter; that testimony has been given and found to be factual that the Green Valley Country Club facilities have remained open to Mrs. Krouse; that Mr. Krouse, since his separation, has paid an orthodontist's bill for his daughter; that Mr. Krouse, since the separation, has purchased clothing and provided allowances for the children; that Mr. Krouse, since the separation, has provided as recently as yesterday an Oldsmobile 98 for Mrs. Krouse, which replaced a Cutlass which, prior to that time, Mr. Krouse had provided for Mrs. Krouse; that Mrs. Krouse has taken unto herself the $4,300.00 refund check arising from the refund on the 1970 Income Tax Return of the parties; that Mrs. Krouse testified that she herself receives

[ 221 Pa. Super. Page 15]

    approximately $1,500.00 a year income from a trust fund [and] that Mr. Krouse is paying $1,000.00 plus air fare for a special reading camp for the parties' son [.]'"

Based on these findings the Court concluded that "Mr. Krouse has continuously and generously provided support for his wife and children in the life style to which they are accustomed. There was absolutely no testimony or indication that Mr. Krouse intends to flee the jurisdiction, or otherwise avoid his obligation to his family. The mere filing by a wife of a petition for support, without more, certainly does not justify the court in entering an order against the husband; particularly where, as in this case, the husband is applying a portion of his income equal to or greater than any order which the court might enter; and, where the wife, as here, failed to sustain the suggestion that her husband is hiding income or assets."

The substantive right of a wife to support is determined both under the common law and the Act of June 24, 1939, P. L. 872, § 733, as amended, 18 P.S. 4733. MacDougall v. MacDougall, 397 Pa. 340, 155 A.2d 358 (1959). This substantive right may be enforced through the procedure provided by either the Civil Procedural Support Act or the Act of May 23, 1907, P. L. 227, § 2, as amended, 48 P.S. 132. The Civil Procedural Support Act provides no substantive rights, as it was "not intended to create new rights of support." Commonwealth ex rel. Jones v. Jones, 216 Pa. Superior Ct. 1, 4, 260 A.2d 809 (1969).

The Act of 1907 is also a procedural law. It allows a wife to proceed in equity where her husband has both separated from her and neglected to support her. This Act, however, was not intended to exclude the ...


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