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COMMONWEALTH EX REL. KRUG v. KRUG (03/27/73)

decided: March 27, 1973.

COMMONWEALTH EX REL. KRUG, APPELLANT,
v.
KRUG



Appeal from order of Court of Common Pleas of Delaware County, Sept. T., 1972, No. F-19-260, in case of Commonwealth ex rel. Margaret R. Krug v. William W. Krug.

COUNSEL

Louis J. Sinatra, with him Levy and Levy, for appellant.

Richard A. Mitchell, with him Cramp, D'Iorio, McConchie and Surrick, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Spaulding, J., concurs in the result. Wright, P. J., and Jacobs, J., dissent.

Author: Cercone

[ 224 Pa. Super. Page 101]

This is an appeal from the lower court's holding that relatrix was not entitled to a support order against her husband for the reasons that (a) she had failed to prove adequate legal reason for her withdrawal from the common domicile; and (b) she had failed to establish by competent legal evidence her need for support.

It is our determination, after a study of the evidence, that these two conclusions of the court are not supported by the record or by law. The court did not refuse to believe the wife's testimony but held it was insufficient. The court's opinion was that the wife's testimony regarding defendant's frequent state of intoxication and his abusive degrading conduct while so intoxicated, culminating in a violent argument immediately prior to the wife's withdrawal from the domicile,

[ 224 Pa. Super. Page 102]

"exemplifies the sort of conduct that you might find in most any marriage, even those marriages that are successful." The judge stated: "People do have disagreements with a certain amount of frustration, and perhaps excessive drinking from time to time."

Though each fact situation is unique and calls for its own conclusion, there is nevertheless, sufficient precedent to reveal the error of the court's conclusion in this case. Conduct similar to that testified to by the wife in this case, even if not rising to that degree entitling the wife to a decree of divorce, has been held to entitle the wife to live separate and apart from the husband: Comm. ex rel. Cellucci v. Cellucci, 173 Pa. Superior Ct. 1 (1953); Comm. v. Sgarlat, 180 Pa. Superior Ct. 638 (1956); Comm. ex rel. Rovner v. Rovner, 177 Pa. Superior Ct. 122 (1955); Comm. ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429 (1965).

The husband made no denial of the material portions of the wife's testimony and the court placed no reliance on his testimony in making its conclusions. It did choose, instead, to rely on the testimony of the relatrix's son-in-law, who testified in behalf of defendant husband. The lower court states that it found "credible and persuasive" this witness's testimony that both parties liked a cocktail and would occasionally become somewhat inebriated, that relatrix seemed to be the heavier drinker and a good deal less genial in that condition than her husband who would be "jovial".

In view of the fact that the defendant himself did not testify to the same effect as the son-in-law, it was error for the court to base its decision on the testimony of a son-in-law who never resided in the relatrix's household but lived five miles away and saw the parties socially only at varying intervals, sometimes once a week and then not ...


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