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COMMONWEALTH EX REL. LOOSLEY v. LOOSLEY (09/22/75)

decided: September 22, 1975.

COMMONWEALTH EX REL. LOOSLEY, APPELLANT,
v.
LOOSLEY



Appeal from order of Court of Common Pleas of Delaware County, Dec. T., 1970, No. F-17-246, in case of Commonwealth of Pennsylvania ex rel. Margaret Loosley v. Murray Loosley.

COUNSEL

Joseph P. Mylotte, with him Ackerman & Mylotte, for appellant.

Louis S. Cali, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Spaeth, J., concurs in the result. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Van Der Voort

[ 236 Pa. Super. Page 390]

Appeal is taken to this Court from an Order of Judge Domenic D. Jerome denying appellant's petition for support. The question for our consideration is whether the lower court abused its discretion in denying support to appellee's spouse, there having been no divorce and appellant having left the abode of her husband.

Our appellate review of the record will extend only to a determination of whether there is sufficient evidence to sustain the Order entered. "It has been repeatedly stated that, in a support proceeding, we will not interfere with the determination of the lower court unless there has been a clear abuse of discretion." Commonwealth ex rel. McCuff v. McCuff, 196 Pa. Superior Ct. 320, 324, 175 A.2d 124, 126 (1961). Such a finding by our Court will not be made lightly, but only upon clear and convincing evidence. Commonwealth ex rel. Halderman v. Halderman,

[ 236 Pa. Super. Page 391230]

Pa. Superior Ct. 125, 326 A.2d 908 (1974). In order to determine whether there exists such clear and convincing evidence to overturn an order against a spouse who has left the abode, we are guided by Halderman, supra, at 128:

"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. (Citations omitted). The wife need only show by sufficient evidence a reasonable cause that would justify her voluntary withdrawal from the common domicile."

Without such reasonable grounds, the spouse who leaves is not entitled to support from the other spouse, whose argument by way of defense is that the departing spouse's conduct would amount to valid grounds for divorce. See Commonwealth ex rel. Bergwerk v. Bergwerk, 228 Pa. Superior Ct. 190, 323 A.2d 243 (1974) and Commonwealth ex rel. Keeth v. Keeth, 223 Pa. Superior Ct. 96, 289 A.2d 732 (1972).

Uncontradicted testimony indicates that appellant and appellee exchanged bitter words in fits of anger, and that appellee was quite often angry at his wife's dependence upon her family. Appellee knew that appellant was under treatment for a psychiatric disorder and that his conduct, such as moving to another bedroom for sleeping, made her quite nervous. Appellee on numerous occasions informed his wife that he wanted a divorce. There is testimony that appellee in some degree struck appellant's upper arm, a bruise having resulted.

Based upon our reading of the testimony, we conclude that appellant met her burden of proving that her home life was sufficiently ...


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