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decided: March 31, 1977.


Appeal from the Order of the Court of Common Pleas of Lehigh County, Criminal Division, at No. 368-A of 1972. No. 1214 October Term, 1975.


Sandor Engel, Allentown, with him Clayton T. Hyman, Allentown, for appellant.

Howard S. Epstein, Allentown, with him Morris Efron, Allentown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Cercone, J., joins.

Author: Price

[ 246 Pa. Super. Page 538]

On June 5, 1972, the appellant-wife entered into a stipulated order with the appellee-husband by which the husband agreed to pay $140 per week for the support of his wife. On September 23, 1974, the husband petitioned the court below to reduce the amount of the support order, alleging reduced earnings. On January 23, 1975, the husband petitioned the lower court to terminate his support obligation, alleging, inter alia, that he could no longer be compelled to provide support for his wife because

[ 246 Pa. Super. Page 539]

    she had engaged in adulterous conduct. After a consolidated hearing on both petitions, the lower court terminated the order of support after finding that the wife had committed adultery. This appeal followed.

By statute, a support order is not a final order. The Act of June 19, 1939, P.L. 440, No. 250, § 1 (17 P.S. § 263), provides that the court below may, at any time, modify or vacate an order of support, ". . . as the case may warrant." Thus, we have held on many occasions that the modification or termination of a support order is within the reasonable discretion of the court below based upon a consideration of all the relevant factors. E. g., Commonwealth ex rel. Fryling v. Fryling, 220 Pa. Super. 68, 283 A.2d 726 (1971); Commonwealth ex rel. Kozlowski v. Kozlowski, 176 Pa. Super. 24, 106 A.2d 676 (1954). Unless there has been a clear abuse of discretion, we will not interfere with the determination of the lower court in a support proceeding. E. g., Commonwealth ex rel. McCuff v. McCuff, 196 Pa. Super. 320, 175 A.2d 124 (1961).

In the case at bar, the lower court refused to admit evidence of the husband's infidelity, declaring that a husband's misconduct is not relevant to a determination of a wife's right to support. The appellee, joined by the dissent, would have us affirm the action of the lower court and adopt the inexorable rule that (1) the lower court may not consider a husband's misconduct in a proceeding to vacate a wife's support on the basis of her alleged adultery and that (2) if proven, a wife's adultery, unless condoned or encouraged by her husband, will deprive her of his support. After careful consideration, we conclude that such a holding would incorrectly restrict the lower court's range of review and might, therefore, in certain situations, induce an inequitable decision.

[ 246 Pa. Super. Page 540]

In support of their position, both the appellee and the dissent rely heavily upon our opinion in Commonwealth Page 540} (ex rel., Appellant) v. Crabb, 119 Pa. Super. 209, 180 A. 902 (1935), where we stated:

"Undoubtedly, the original order of support, upon proof of the infidelity of the husband, was fully warranted, but the misconduct of the husband did not justify the wife to conduct herself in such a manner as made her unworthy of the support of her husband. The order of support is predicated not only upon the fact that she is worthy at the time of entry, but that she continues to be worthy during its pendency. As well stated in the court's opinion: 'We are at a loss to understand why or how the effect of the husband's adulterous relations can be construed to allow or import leave, license or excuse to the wife to subsequently enter into similar relations.'" Id. at 211, 180 A. at 903; see also Commonwealth ex rel. Brobst v. Brobst, 173 Pa. Super. 171, 96 A.2d 194 (1953).

Despite this language, however, our holding in Crabb was limited solely to the proposition that the lower court has the power to terminate support payments to an adulterous wife even though her husband was similarly culpable. Specifically, we declared that:

"We are not to be understood as holding that where both parties have been guilty of misconduct, that the misconduct of the wife shall be an absolute bar to support proceedings; nor is the court called upon to balance against each other their mutual misdeeds, but where, as in the present proceedings, the court in its reasonable discretion denied support, we shall not disturb the order." Id., 119 Pa. Super. at 212, 180 A. at 903-04.

This language does not provide support for the proposition that the lower court may properly refuse to consider evidence of a husband's misconduct in a proceeding to terminate a wife's support. The lower court in Crabb allowed before it evidence of the husband's infidelity. Here, the lower court declined to accept such evidence.

[ 246 Pa. Super. Page 541]

The question before us in Crabb was whether a lower court may vacate a wife's support award where both parties are guilty of adultery. Here, we must determine whether evidence of a husband's misconduct is relevant in a proceeding to vacate a wife's support. This question was not answered by our holding in Crabb.

The restricted nature of our holding in Crabb has been recognized on several occasions. In Brobst v. Brobst, 173 Pa. Super. 171, 174, 96 A.2d 194, 195 (1953), we stated that "[t]he fact that a husband's own conduct may preclude a divorce from a wife who has committed adultery does not necessarily preserve the legal duty to support her." (emphasis added) We further held in Brobst that where both parties are guilty of adultery, the court below did not abuse its discretion by vacating the payment of support to the wife " under the circumstances." (emphasis added) Id. at 174, 96 A.2d at 195. The language in Brobst was quoted with approval in Commonwealth ex rel. Young v. Young, 213 Pa. Super. 515, 247 A.2d 659 (1968) and Commonwealth ex rel. Levitz v. Levitz, 189 Pa. Super. 438, 150 A.2d 581 (1959). Similarly, in Commonwealth ex rel. McCuff v. McCuff, supra, we stated that "[i]t is of course true, as appellant argues, that an order of support may be refused, or vacated, where the wife is guilty of infidelity, notwithstanding the fact that the husband is likewise guilty of misconduct which precludes him from obtaining a divorce." (emphasis added) Id. 196 Pa. Super. at 322, 175 A.2d at 125.

Several conclusions may be drawn from these cases. In two cases, Crabb and Brobst, this court has implied in dicta that it does not consider a husband's adultery to be relevant to a determination of a wife's right to support. Notwithstanding this language, however, this court has never instructed the court below to refuse to consider such evidence in its review of a particular case. To the contrary, this court had implied in all

[ 246 Pa. Super. Page 542]

    of its holdings, particularly in Brobst, that such evidence is properly within the lower court's scope of review. Thus, at present, inexcusable disparity of direction exists between comment and conclusion in our writings dealing with the instant problem. We do not subscribe to the dicta found in Crabb and Brobst and disaffirm such language.

As previously stated, the termination of an order of support rests within the discretion of the court below and depends upon the equities of the case. The Act of May 23, 1970, P.L. 227, § 1 (48 P.S. § 131, as amended; The Act of June 19, 1939, P.L. 440, No. 250, § 1 (17 P.S. § 263). By urging us to direct the court below that a wife's right to support is automatically defeasible upon proof of her adultery, the appellee and the dissent would have us ignore legislative mandate. The appellee exhorts that no matter how nefarious, the conduct of the husband is of no moment except to show condonation or connivance. Normally, in support cases, we are loath to substitute our judgment for that of the court below which has an opportunity to observe the demeanor of witnesses as they present evidence. Thus, on appeal, we will not disturb an order of support unless there is a clear abuse of discretion by the court below in fixing the amount of the award or unless the order is based upon a misinterpretation of the law. E. g., Commonwealth ex rel. Collins v. Collins, 232 Pa. Super. 105, 331 A.2d 675 (1974). We are unable to conclude from the record that the equities of the present case are so clear that the lower court had no recourse but to vacate the payment of support to a wife once it determined that the charged transgression was true.

The appellee, citing Crabb, explains that a wife may receive support from her husband unless she conducts herself in a manner unworthy of his support. Once the wife behaves in such a manner, no similar conduct of the husband will work to excuse the wife's action.

[ 246 Pa. Super. Page 543]

Thus, although the husband has acted in disparagement of the marital status, he is relieved of his obligation to support his wife. We agree with the appellee that an act of adultery on the part of the husband does not give a wife, unrestrained by morality or personal dignity, a right to act forever in a licentious manner and still command support from her husband. Support laws, however, were not promulgated for the purpose of rewarding a wife's good behavior. An order of support seeks to secure a reasonable allowance for the maintenance of the wife so that she may not become a charge of the state. Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Super. 541, 185 A.2d 822 (1974). Thus, although it is true that the only cause which will justify a husband's refusal to support his wife is conduct on her part, such as adultery, which would be a valid ground for divorce, Commonwealth ex rel. Herman v. Herman, 95 Pa. Super. 510 (1929), we must not focus our attention solely upon the wife's conduct in reviewing her right to support. We must look at all the circumstances present in each case. If we were to mechanically apply the appellee's inflexible rule, if we did not view each case in its entirety, then certainly we would eventually occasion an inequitable termination of support.

For example, we agree with Chief Justice Cullen of the New York State Court of Appeals that ". . . a single act of adultery [on the part of the wife], possibly committed at a time long past, and sincerely repented of, should not enable the husband to cast her off without support, though he may be living a life of continuous and [open] profligacy." Hawkins v. Hawkins, 193 N.Y. 409, 422, 86 N.E. 468, 473 (1908) (Cullen, C. J., Dissenting Opinion).*fn1 This would be especially true if the wife

[ 246 Pa. Super. Page 544]

    should also be indigent absent the support of her husband. Although this particular situation may rarely arise, the mere possibility of its occurrence should provide sufficient reason to avoid restricting the discretion of the lower court.

We hold that the lower court abused its discretion by refusing to consider evidence of the husband's misconduct. If we were to affirm the action of the lower court, we would be disregarding direct legislative mandate and elevating misconsidered dicta to the status of binding precedent. We therefore remand this case to the court below*fn2 for a hearing consistent with this opinion.

The appellee and the dissent also contend that the appellee-husband was not guilty of connivance. Here, the wife testified that for two years before their separation and for two and one half afterwards her husband had repeatedly implored her to "[p]lease find somebody so I won't have to pay you support." (N.T. 75) By itself, we agree that the record does not reveal that the husband had connived at her adultery. However, in this situation, we find further support for the proposition that the lower court must review evidence of a husband's misconduct in a proceeding to terminate a wife's support.

Connivance is often very difficult to establish. It is most easily ascertained where a husband actively introduces his wife into lewd company or lays temptation in her way for the purpose of procuring her adultery.

[ 246 Pa. Super. Page 545]

    the extent and circumstances of the husband's alleged adultery.

The record is remanded to the court below with a procedendo.

SPAETH, Judge, dissenting:

This is certainly one of the most difficult cases we have had. On the one hand, the pertinent principles of law are both long-settled and clearly stated. On the other hand, having worked through the evolution of those principles, and having applied them to the facts of the case, one is left with a profound and abiding sense of dissatisfaction. The reason why this is so is that the principles, settled as they may be, are unjust.

A judge confronted with the task of applying principles of law that after the most conscientious reflection appear unjust will naturally become restive. This feeling, however, does not warrant the judge in changing the principles, or (what amounts to the same thing) in refusing to abide by them. If the principles are of judicial origin, change may be warranted, although consideration will have to be given to the values associated with the doctrine of stare decisis. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa. Super. 307, 369 A.2d 416 (1976) (concurring opinion). If, however, the principles are embedded in a statute, unless they are unconstitutional the judge must apply them. In such an event, he may, and in my opinion he should, protest with vigor, in the hope that the legislature will be persuaded to change the statute.

Here, the majority has followed neither of these courses of action. Instead, its restiveness, which I share, has led it to misstate the law, with a doubly unfortunate result. By stating that the law is other than it really is the majority has both blunted the possibility of legislative

[ 246 Pa. Super. Page 547]

    reform and has formulated a rule that the lower courts will be unable to apply.

In the case at hand the husband's petition to terminate his obligation to support his wife was filed pursuant to the Pennsylvania Civil Procedural Support Law.*fn1 The lower court granted the petition because it found that the wife had committed adultery. On this appeal the wife contends that the lower court abused its discretion because it refused to admit testimony that the husband had also committed adultery.

As I believe the ensuing discussion will show, the lower court merely excluded irrelevant testimony. I would therefore affirm. However, I wish also to note the injustice of the principles of law that the lower court applied in reaching its decision.


In what follows I shall undertake to summarize the pertinent principles of law.


The purpose of support is to provide a dependent spouse with a reasonable living allowance. Commonwealth ex rel. Bishop v. Bishop, 234 Pa. Super. 600, 341 A.2d 153 (1975); Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Super. 541, 185 A.2d 822 (1974). The obligation to provide support is imposed as an incident of the marital relationship, which is conceived as a unity. Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa. Super. 593, 307 A.2d 442 (1973); Commonwealth v. Berfield, 160 Pa. Super. 438, 51 A.2d 523 (1974). When that unity is severed, the obligations incident to it cease. When a husband and wife are divorced, therefore, the husband's obligation to support his wife

[ 246 Pa. Super. Page 548]

    ceases; when a husband and wife separate only, the marital unity is not severed, and the husband's obligation to support his wife therefore continues to exist.*fn2 It follows that if a husband establishes, before or apart from an action for divorce itself, that he has grounds for divorce -- that his wife has conducted herself in a manner contrary to her marital obligations -- the result is to establish that the marital unity has been severed, and that his obligation to support his wife has therefore ceased. Specifically, if a wife commits adultery, her husband does not have to support her; she may demand support as an incident of the marital unity only if her behavior is consistent with that unity.


Given these principles, what should be the effect, if any, of a husband's own adultery when on the basis of his wife's adultery he seeks to terminate his obligation to provide her support? Commonwealth (ex rel., Appellant) v. Crabb, 119 Pa. ...

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