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COMMONWEALTH PENNSYLVANIA EX REL. VELMA D'ANDREA v. PASQUALE D'ANDREA. APPEAL VELMA D'ANDREA (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. VELMA D'ANDREA
v.
PASQUALE D'ANDREA. APPEAL OF VELMA D'ANDREA



NO. 563 OCTOBER TERM, 1978, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Division, entered January 31, 1976, No. 495-77.

COUNSEL

Daniel C. Barrish, Abington, for appellant.

James T. Vernile, Philadelphia, for appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Lipez

[ 262 Pa. Super. Page 304]

Pasquale and Velma D'Andrea were married on June 11, 1949. In July of 1974, Mr. D'Andrea moved out of the

[ 262 Pa. Super. Page 305]

    marital abode, a five bedroom house in Rydal, Pennsylvania, into an apartment in a building he owned in Philadelphia. He took with him nearly all of his personal effects. Mr. D'Andrea indicated to his wife that he was leaving their house in order to live with one Gertrude Murray, which he did at this residence and at others in New Jersey and Philadelphia. Following his departure, Mr. D'Andrea voluntarily made payments to his wife of $1,000.00 per week. These payments continued for nearly three years, and stopped when Mrs. D'Andrea brought the present action.*fn1

Approximately two and one-half years after the separation Mrs. D'Andrea was introduced by mutual acquaintances to Carl Fogh. Mr. Fogh maintained residences at the time in Montreal and in New York. He began spending weekends in Mrs. D'Andrea's company at her house one month after they met, and continued to do so up to the date of the support hearing. The court below found that Mr. Fogh keeps some of his clothing and other personal property at Mrs. D'Andrea's house, and receives mail there.

On January 6, 1976, Mrs. D'Andrea executed a criminal complaint charging her husband with failure to support her and the couple's younger child, who at that time was seventeen years old and still living at home. A hearing on entitlement to support was then held before the court. The court denied the petition as to Mrs. D'Andrea, but conditioned the denial upon Mr. D'Andrea's undertaking to make mortgage payments on his wife's home which he did. Mrs. D'Andrea appealed.

The principal issue before us on this appeal is whether the court below gave proper consideration to all matters which it was bound to consider under the rule laid down by this court in Hellman v. Hellman, 246 Pa. Super. 536, 371 A.2d 964 (1977). The other issues are: (1) whether Mrs. D'Andrea's alleged adultery had been proven by clear and convincing evidence; (2) whether, if proven, Mr. D'Andrea had condoned her adultery; and (3) whether certain testimony

[ 262 Pa. Super. Page 306]

    by Mr. D'Andrea had been properly admitted at the hearing. We conclude that the court below was correct as to all of these points and therefore affirm.

I

In Hellman v. Hellman, supra, this court held that, where support entitlement is at issue, it is error to exclude evidence of adulterous misconduct of the paying spouse, and that such misconduct on the part of both the paying spouse and the recipient spouse must be considered by the trial court in deciding whether to issue a support order. Of course, proof of the paying spouse's adultery will not alone automatically warrant the entry of a support order. This decision must rest within the discretion of the trial court and depends upon the equities of the case. See 246 Pa. Super. 542-543, 371 A.2d at 967.

It is obvious that the court below did not refuse to hear evidence concerning adulterous conduct on the part of Mr. D'Andrea. Indeed, it was stipulated by Mr. D'Andrea's counsel:

Mr. Simone: . . . For the record, we will admit and agree that Mr. D'Andrea has been living with this ...


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