No. 110 Harrisburg, 1980, Appeal from Order of Support of May 5, 1980, The Honorable William W. Caldwell, Court of Common Pleas, Dauphin County
Arthur L. Goldberg, Harrisburg, for appellant.
Jeffrey A. Ernico, Harrisburg, for appellee.
Price, Johnson and Shertz, JJ. Price, J., did not participate in the decision of this case.
[ 291 Pa. Super. Page 66]
This is an appeal from an Order of support directing Appellant husband to make payment of seventy dollars per week, and of one-half the dividends on certain stock, to Appellee wife. Appellant contends that Appellee has failed to meet her burden of proving support entitlement inasmuch as no testimony justifying the entry of such an order was presented in the court below. We agree.
The pertinent facts of this case may be summarized briefly. Sometime after leaving the marital residence, Appellee filed for support. During a conference, held in the Dauphin County Domestic Relations Office, the parties were unable to arrive at an agreement as to support.*fn1
On May 5, 1980, the parties appeared before the Court of Common Pleas, but no testimony was taken. Instead, counsel for each side briefly stated his respective position. In so
[ 291 Pa. Super. Page 67]
doing, counsel for Appellee indicated that "she (Appellee) left home under very strange circumstances" (N.T.4). The lower court, at that point, informed counsel it "did not want to get into that." (N.T.4). At the conclusion of these "proceedings" the lower court entered the Order which is the subject of this appeal. In its opinion, the lower court stated that its decision was based solely upon the wage differential of the parties.
Appellant then filed this appeal contending Appellee had not proved any entitlement to support. Appellee countered that Appellant had waived any objection to the decision of the lower court by not filing exceptions pursuant to Rule 1038(d), Pa.R.Civ.P.
It is well-settled that "a wife seeking support has the burden of establishing that her husband consented to the separation or that her husband's conduct justified her leaving the marital home." Kurpiewski v. Kurpiewski, 254 Pa. Super. 489, 386 A.2d 55 (1978).
In the instant case there is no testimony which addresses, or seeks to justify or to explain, why Appellee left the marital residence. Consequently there is no record available which can demonstrate whether support is in order. In fact, the lower court refused to consider this issue.*fn2 Rather, the court chose to enter an Order based on "the wage differential ...