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November 6, 1981


No. 693 Philadelphia, 1980, Appeal from the Order entered February 26, 1980, of the Court of Common Pleas, Civil Action, Law, Domestic Relations Division, for the County of Delaware, at No. F-31-1506-1979.

Before Montemuro, Shertz, and McEWEN

Author: Per Curiam


This is an appeal from an Order of Support in the amount of $40 per week for the petitioner/wife retroactive to October 18, 1979. For the reasons discussed below we find no error in the holding of the lower court and, accordingly, we affirm.

Appellant contends that petitioner/wife (appellee herein) left the domicile without sufficient legal grounds and therefore is not entitled to support.

The standard of sufficiency of evidence required by a petitioner for support is articulated in Larkin v. Larkin, 262 Pa. Super. 294, 396 A.2d 761 (1978), and in Halderman v. Halderman, 230 Pa. Super. 125, 326 A.2d 911 (1974), to wit:

The wife need only show by sufficient evidence a reasonable cause that would justify her voluntary withdrawal from the common domicile. (Citations omitted.)

As to the husband, the only reasonable cause justifying refusal to support his wife is conduct on her part which would be a valid ground for a decree in divorce. (Citation omitted.) Thus, a wife's failure to live with the husband does not justify the husband's refusal to support the wife unless the separation is willful and malicious and without consent or encouragement. Halderman, supra, at 128-129.

We are compelled to agree with the lower court that respondent's temper tantrums, groundless accusations of infidelity in front of others, ordering the petitioner out of the house, throwing her clothes on the front lawn, damaging her sewing machines and work table, changing the locks on their common residence, constant arguing over financial matters, and disruption of her earning capacity, taken together, constitute valid legal grounds for her departure from the domicile. Hence, the court below did not abuse its discretion in this holding.

Appellant further contends that the income of petitioner/wife exceeded that of respondent/husband and therefore an award of support was an error by the lower court. This contention rests on testimony by Julia Maiorano brought out under cross-examination (R. 107A) in which opposing counsel wished her to project annual earnings based on an approximate January to June figure of $5,000. Her reply was, "at that time [I earned $5,000] things have changed." Her actual annual earnings in prior years reached a peak of $6,700 in the calendar year 1978. In fact, she is now employed as an apprentice upholsterer (R. 97a), and her present income can be verfied at only $60 per week. If counsel for appellant had projected that income over a year, the total gross income for Mrs. Maiorano would total only $3,120. The record simply does not clearly show, as appellant contends, that petitioner/wife earns a significant amount of income or that support in this case is "unfair, punitive, or confiscatory." Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 323 A.2d 766 (1974).

The amount of support stipulated in the Order for Support is $40 per week. This is the amount originally ordered by the Master and subsequently ordered also by the court. The appellate courts of this Commonwealth have construed very narrowly their role in reviewing support cases. For instance, in Commonwealth v. Goodyear, 270 Pa. Super. 326, 411 A.2d 550 (1979), our court said:

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. Id. at 328, 411 A.2d at 551.

Appellant's only contention on this issue is that the wife earns more money than does the husband. Finding as we have that the record does not support appellant's claim that he actually earns less than the wife, we find it impossible to say that the holding of the court below was "a very clear abuse of discretion."

As to appellant's contentions that the court below exhibited undue sympathy to the appellee during trial, pre-judged appellant's case, and failed to consider any of his testimony or arguments, we need only say that a review of the records in this case reveals that these charges are completely groundless. The "undue sympathy" was only exhibited when appellee, an older woman, had broken her dentures and was understandably upset. The court did no more than attempt to calm down an obviously nervous and elderly witness. Hence, any allegation of pre-judgment is patently without merit.

For the reasons discussed above, the Order of the court below is hereby affirmed.


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