decided: September 23, 1974.
COMMONWEALTH EX REL. HALDERMAN, APPELLANT,
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 The claim for support for the elder son, Charles, was withdrawn because he had attained the age of 18 subsequent to the filing of the support petition.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 justification for separation); Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A.2d 793 (1955) (mere allegation by wife that cohabitation was unbearable, unsupported
[ 230 Pa. Super. Page 128]
by facts or reason, was not sufficient to support lower court's grant of support); Commonwealth ex rel. Brown v. Brown, 195 Pa. Superior Ct. 324, 171 A.2d 833 (1961) (holding by the lower court, that the inability of husband and wife to agree on financial matters was, of itself, a valid reason for separation, was reversed.)
In the instant appeal, after reviewing the record, we find the evidence insufficient to sustain the order of the court below, and, therefore, agree with appellant's contentions as to her petition for support and remand to the lower court for the entry of an appropriate order. However, we find the $40.00 per week order in favor of Bruce to be adequate, and so affirm that order.
The law governing the burden of proof in an action for support and maintenance following a nonconsensual, voluntary withdrawal of the wife from the common abode, is well settled. In such an instance, it is not necessary for the wife to present grounds for leaving her husband which would entitle her to divorce in order to procure an order of support. Commonwealth ex rel. O'Gara v. O'Gara, 198 Pa. Superior Ct. 405, 181 A.2d 723 (1962); Commonwealth ex rel. De Cristofano v. De Cristofano, supra. The wife need only show by sufficient evidence a reasonable cause that would justify her voluntary withdrawal from the common domicile. Commonwealth ex rel. Young v. Young, 207 Pa. Superior Ct. 440, 217 A.2d 857 (1966); Commonwealth ex rel. DiPietro v. DiPietro, 175 Pa. Superior Ct. 18, 102 A.2d 192 (1954).
As to the husband, the only reasonable cause justifying his refusal to support his wife is conduct on her part which would be a valid ground for a decree in divorce. Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 57 A.2d 720 (1948). Thus, a wife's failure to live with the husband does not justify the husband's refusal to support the wife unless the
[ 230 Pa. Super. Page 129]
separation is willful and malicious and without consent or encouragement. Commonwealth ex rel. DiPietro v. DiPietro, supra.
These precedents are based on the policy "that where there are reasonable legal grounds justifying a wife's decision to separate from her husband, although possibly falling short of the minimum ground for obtaining a divorce, the husband should be required to support her where he is able to do so, lest she become a charge upon society in general." Commonwealth ex rel. Darges v. Darges, 202 Pa. Superior Ct. 330, 333, 195 A.2d 847, 849 (1963) (quoting lower court opinion).
Appellant testified that she separated from her husband primarily because of his conduct toward the children. She further testified that she had separated from her husband on two other occasions because of his "beating and being mean to the children," and that on "many, many occasions" the husband would "get [Charles] on the floor, sit on him and pound him on the back and on the head."*fn3 Appellant also specifically described two such instances when appellee used what clearly amounts to the excessive use of physical force in dealing with the children, one of which immediately precipitated the parties' final separation.*fn4
[ 230 Pa. Super. Page 130]
Appellee, in his testimony, did not refute his wife's testimony, but in fact corroborates it.*fn5 He does not contradict her testimony as to the details of the two instances of beatings of the sons, although he does characterize his actions as constituting discipline of the children.*fn6 Appellee, throughout his testimony, contended
[ 230 Pa. Super. Page 131]
that the differences between the parties amounted to only disagreements as to the disciplining of the children. He also contended that the two instances of brutality cited by the wife were mere isolated instances over a five month period. However, at no time did he refute her testimony that the incident occurring on March 3, 1973, was one of many similar incidents. On the contrary, he admitted that he had been using his fists on Charles since at least August, 1972.
"In an action for divorce, where the burden of proof is much greater than in the instant case, mistreatment of a spouse's child has been held to constitute indignities directed to the person of the parent and thus may support a divorce decree." 220 Pa. Superior Ct. at 389, 281 A.2d at 721 (husband attempted sexual molestation of wife's child). See also Annot., Mistreatment of Children as Grounds for Divorce, 82 A.L.R. 2d 1361 (1962); 2 Freedman, Law of Marriage and Divorce in Pennsylvania, § 338 (2d ed. 1957). Action by a
[ 230 Pa. Super. Page 132]
spouse amounting to excessive physical abuse, by beating or whipping a child, has been held sufficient to constitute indignities that would support an action for divorce. Walker v. Walker, 109 Pa. Superior Ct. 539, 167 A. 446 (1933).*fn7 Cf. Commonwealth v. Sgarlat, 180 Pa. Superior Ct. 638, 121 A.2d 883 (1956); Commonwealth ex rel. Berry v. Berry, 165 Pa. Superior Ct. 598, 69 A.2d 442 (1949).
We are convinced, after reviewing the evidence, that appellant has clearly met the required burden by demonstrating sufficient evidence of numerous incidents of excessive physical force by the husband toward the children, and has demonstrated an adequate reason at law to justify appellant's voluntary withdrawal and right to receive support from appellee.
Appellant also contends that the $40.00 per week support order and responsibility for the $1,400 orthodontist's bill for Bruce was unreasonably low and not supported by sufficient evidence in light of appellee's financial circumstances.*fn8 At the time of the preliminary support conference, appellee's net weekly income was $199.99. Between the date of the conference and the time of the hearing, appellee testified that his gross income had been increased by $10.00 per week. He also testified to a reduction of debts during that period
[ 230 Pa. Super. Page 133]
of time, from $4,497.46 to $3,631.66.*fn9 The joint real estate was valued at $48,000.00, with a mortgage balance of $13,871.53.
Appellant testified to weekly expenses of $168.23; however, she did not testify as to the individual cost of supporting Bruce. She receives $50.00 per week in welfare, without food stamps, and $10.00 per week from both the son, Charles, and a nephew for room and board.
The amount of a support order must be justified by the parent's present earning ability and will not be interfered with by the court unless the amount awarded for support is grossly inadequate or excessive. Commonwealth ex rel. Goodman v. Delara, 219 Pa. Superior Ct. 449, 281 A.2d 751 (1971); Commonwealth ex rel. Jacobson v. Jacobson, 188 Pa. Superior Ct. 433, 146 A.2d 91 (1958).
We are of the opinion that the order entered by the court below was not unreasonable in view of the record before us and that $40.00 per week for the support of one child is adequate.
That portion of the order of the lower court denying the appellant support is vacated, and the record is remanded for a determination of what amount of support appellant should receive. That portion of the order of the lower court awarding $40.00 per week support and payment of $1,400.00 for orthodontic fees for son Bruce, is affirmed.
Order vacated in part and affirmed in part, and record remanded.