No. 2167 October Term, 1979 Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Division, No. 2135-79.
Arthur L. Jenkins, Jr., Norristown, for appellants.
Charles J. King, Jr., Norristown, for appellee.
Hester, Cavanaugh and Van der Voort, JJ. Cavanaugh, J., files a dissenting statement.
[ 283 Pa. Super. Page 399]
Presently before the court is wife-appellant's appeal from the order of the lower court dated October 4, 1979, wherein the court after hearing, concluded that appellant had failed to carry her burden of proving that her voluntary departure from the marital abode was justified; rather that same was unjustified and, hence, she was not "entitled" to spousal support.
We reverse and remand for a hearing consistent herewith.
This case came before the lower court on appellant's complaint for support for herself and one minor child (an 11-year old daughter) who resided with her. There are two other children born of the marriage who presently reside with the appellee -- a 19-year old daughter who attends Temple University and a 16-year old high school student. The lower court hearing on October 2, 1979 was limited to the legal issue of appellant-wife's "entitlement" to support on her own behalf. After hearing, the lower court ordered the appellee to pay $35.00 per week for the support of the parties' minor daughter who resides with the appellant, but denied appellant's complaint for spousal support, the lower court having concluded that appellant was not "entitled" to support for herself.
It is from the decision of the lower court only with respect to the issue of appellant's entitlement to spousal support that the instant appeal has been brought.
The limited record reflects the following: That the relationship between the parties had deteriorated badly for several years, primarily over money problems. In September or October of 1978, appellee stopped giving the appellant grocery money and suggested that the appellant who at the
[ 283 Pa. Super. Page 400]
time was working part-time, could buy groceries herself. In early December, 1978, appellee received a letter from appellant's original attorney requesting a meeting between the parties to discuss the possibility of a separation. Both parties attended this meeting but no consensual agreement or arrangement was reached concerning a possible separation.
That same month, December of 1978, appellant's elderly mother was involved in a very serious automobile accident and was taken directly to Abington Hospital where she stayed until she died the first week in January, 1979 from the injuries sustained. Prior thereto, appellant's mother and 78-year old father lived ...