No. 2340 October Term, 1976, Appeal from the Order dated June 9, 1976, and entered on August 2, 1976, by the Court of Common Pleas of Lycoming County, Criminal at No. 76-10,040.
Michael J. Casale, Williamsport, for appellant.
Martin M. Fine, Williamsport, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 390]
Edna G. Turner had a complaint dated October 20, 1975,*fn1 filed against her husband, Dr. Dudley B. Turner, Jr., alleging his willful desertion and neglect to support her. On January 8, 1976,*fn2 following a hearing on the matter, the complaint was dismissed. A petition for rehearing was filed on April 22, 1976, and as a result of the rehearing, held on June 9, 1976, the lower court affirmed its earlier order
[ 258 Pa. Super. Page 391]
dismissing appellant's complaint.*fn3 For the reasons stated herein, we reverse the order of the lower court and remand the case for compliance with this opinion.
The parties were married on July 29, 1961, and lived together in their home in Williamsport until appellee's departure on about October 20, 1975. Appellee provided no support for his wife after that time. After appellee had the utilities of their home terminated, appellant went to live with her daughter's family and finally moved to her own apartment. At the first hearing on December 23, 1975, both parties offered testimony regarding their financial status. Apparently the only substantial asset of the marriage other than the parties' home, valued at $45,000, was a coin collection which appellee testified had a $40,000 value.*fn4 Appellee contended that his wife had removed the coin collection and approximately $4,000 in cash from a safe in their home. The court scheduled a subsequent hearing for January 5, 1976, to determine whether appellant had possession of the coins and, if so, whether that would preclude her entitlement to support. Appellant insisted throughout both proceedings that she did not have the safe's contents. On January 8, 1976, however, the court dismissed appellant's complaint because it found as follows:
"[T]he Court finds, by the preponderance of the evidence, that the prosecutrix has possession of or control over the sum of approximately $4,200.00 in cash taken from the family safe (apparently tenancy by entireties property) and a coin collection worth in excess of $25,000.00 (either jointly owned or the sole property of respondent). She has refused to acknowledge possession of or control over either item of property, and now seeks a support order in the amount of $200.00 per week."
The court noted that "[o]rdinarily the evidence . . . would warrant entry of a support order in the amount of
[ 258 Pa. Super. Page 392]
$75.00 per week. However, prosecutrix's possession or control of the cash and coin collection gives her control of ample ...