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COMMONWEALTH EX REL. FRIEDMAN v. FRIEDMAN (11/16/72)

decided: November 16, 1972.

COMMONWEALTH EX REL. FRIEDMAN, APPELLANT,
v.
FRIEDMAN



Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, Jan. T., 1972, No. 193, in case of Commonwealth ex rel. Jennie Friedman v. Hyman Friedman.

COUNSEL

David H. Kubert, for appellant.

Jerome E. Ornsteen, with him McEldrew, Hanamirian, Quinn, Bradley & D'Amico, for appellee.

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

Author: Spaulding

[ 223 Pa. Super. Page 67]

Appellant Jennie Friedman appeals from the dismissal of her petition for support by the Court of Common Pleas of Philadelphia, Family Division. The parties were married in 1961. Appellant is now 56 years of age and the appellee is 80. They separated in December 1971, when appellant left the family home provided by appellee. At the hearing in the court below the parties were the only witnesses. Appellant contended that she is entitled to support because she was legally justified in leaving the marital domicile. The court below, however, determined that appellant was not justified in leaving appellee. Finding his testimony more credible, it dismissed her petition for support.

"The function of this Court is to determine whether there is sufficient evidence to sustain the court below or whether the court below was guilty of an abuse of discretion. Commonwealth ex rel. Scarpato v. Scarpato, 190 Pa. Superior Ct. 45, 151 A.2d 783; Commonwealth ex rel. Stomel v. Stomel, 180 Pa. Superior Ct. 573, 119 A.2d 597. In a support proceeding, the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits. Commonwealth ex rel. Woodruff v. Woodruff, 188 Pa. Superior Ct. 320, 146 A.2d 376." Commonwealth ex rel. De Cristofano v. De Cristofano, 193 Pa. Superior Ct. 574, 576, 165 A.2d 105 (1960). President

[ 223 Pa. Super. Page 68]

Judge Wright stated in Commonwealth ex rel. Shapiro v. Shapiro, 204 Pa. Superior Ct. 135, 137, 203 A.2d 369 (1964): "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."

In the instant case, appellant attempted to show that appellee was an alcoholic, resulting in his threatening and abusing her. The appellee's testimony directly contradicted this argument. He contended that appellant's testimony "was an exercise in sheer exaggeration and fancy" and that he drinks only two ounces of liquor each evening, on instructions from his doctor. N.T. 32-33. The court below held that:

"The Court was not impressed with the testimony of the Petitioner. At best, it was vague and inconclusive.

"In the case at bar, the Court is unconvinced by the testimony of the Petitioner. Since the burden is upon her to demonstrate that her husband's conduct justified her leaving him, if she fails to present evidence to establish the justification, she has failed to meet her burden. In the opinion of the Court, the burden has not been met by the Petitioner and, therefore, she is not entitled to support from her husband in this matter." There ...


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