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COMMONWEALTH PENNSYLVANIA v. JAMES J. GOODYEAR (10/05/79)

filed: October 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES J. GOODYEAR, APPELLANT



No. 2919 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Cumberland County, No. 603 Support, 1978

COUNSEL

Wayne F. Shade, Carlisle, for appellant.

Robert C. Saidis, Carlisle, for appellee.

Price, Gates and Dowling,*fn* JJ.

Author: Dowling

[ 270 Pa. Super. Page 327]

This is an appeal from an order of the court below granting appellee's petition for support.

Our function on review is to determine whether there is sufficient evidence to sustain the court below or whether the lower court was guilty of an abuse of discretion.

[ 270 Pa. Super. Page 328]

A finding of abuse is not to be lightly made, but only upon a showing of clear and convincing evidence. Reviewing courts are wisely becoming more reluctant to substitute themselves as super-support courts when they have not had the opportunity to see and hear the witnesses and to determine credibility. Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa. Super. 390, 358 A.2d 102 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa. Super. 605, 346 A.2d 822 (1976); Weiser v. Weiser, 238 Pa. Super. 488, 362 A.2d 287 (1976). Appellate review of support orders is defined very narrowly, and we will not interfere with the lower court's determination, absent a very clear abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa. Super. 116, 111 A.2d 157 (1955). Commonwealth ex rel. McQuiddy v. McQuiddy, supra.

In defining what is an abuse of discretion warranting reversal of the lower court's order, this Court stated in Commonwealth ex rel. Levy v. Levy, 240 Pa. Super. 168, 174, 361 A.2d 781, 785 (1976):

"An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment is manifestly unreasonable, as the result of partiality, prejudice, bias or ill-will, as shown by the evidence in the record, discretion is abused."

Appellant objects on two grounds. First, it is contended that appellee's continued intoxication and false accusations of infidelity, in conjunction with changing the locks on the entireties' dwelling, constitutes indignities to the person of the appellant, hereby operating to deprive her of any right to support.

With respect to the charges of continued intoxication and false accusations, the lower court found that appellee's behavior was neither so frequent nor so severe as to either rise to the level of a "course of conduct", or render appellant's condition "intolerable or burdensome", as required under the definition ...


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