Appeal from order of Court of Common Pleas of Bucks County, No. 352 of 1973, in case of Commonwealth ex rel. Winifred K. Halderman v. Charles M. Halderman.
S. Richard Klinges, III, with him Begley, Carlin, Mandio, Kelton & Popkin, for appellant.
David A. Clarke, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 230 Pa. Super. Page 126]
This is an appeal arising from a nonsupport proceeding commenced by appellant-wife seeking support for herself and her two minor children.*fn1 On March 3, 1973, following a period of marital difficulties and two prior separations, the appellant left the common domicile of the parties and took her two sons with her.*fn2 Appellant's stated reason for leaving was that appellee-husband was physically abusing the seventeen year old son, Charles.
Appellee refused to pay anything for the support of his wife. However, he did pay certain items charged to accounts by appellant before and after the separation, and in July, 1973, commenced payment of $20.00 a week for the support of the thirteen year old son, Bruce.
Following a support conference before a probation officer of the Bucks County Domestic Relations Division
[ 230 Pa. Super. Page 127]
during which the parties were unable to reach a mutually satisfactory agreement, a support hearing was held on August 30, 1973. After a lengthy hearing, in which the only testimony was that of the parties, the court dismissed appellant's petition for support but entered an order for the son, Bruce, in the amount of $40.00 per week, and, in addition, directed appellee to pay the $1,400.00 balance due for orthodontist's services for Bruce. The claim for support for the elder son, Charles, was withdrawn because he had attained the age of 18 subsequent to the filing of the support petition.
In her appeal, appellant alleges error in the court's findings that she was not entitled to support and error in the amount of support set for Bruce. Appellant contends that the evidence presented at the hearing of August 30, 1973, was sufficient to legally justify her separation from her husband and establish her entitlement to support.
Axiomatically, in support proceedings, it is the function of this court 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. De Cristofano v. De Cristofano, 193 Pa. Superior Ct. 574, 165 A.2d 105 (1960); Commonwealth ex rel. Udis v. Udis, 174 Pa. Superior Ct. 624, 101 A.2d 144 (1953). A finding of an abuse of discretion is not lightly made and is determined only upon the showing of clear and convincing evidence that would require reversal of the lower court. See, e.g., Crissman v. Crissman, 220 Pa. Superior Ct. 387, 281 A.2d 719 (1971) (in reversing the lower court, held that immoral advances by husband towards wife's son by another marriage was legal ...