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COMMONWEALTH PENNSYLVANIA EX REL. DOROTHY K. LUTZ v. J. ELMER LUTZ (04/23/82)

filed: April 23, 1982.

COMMONWEALTH OF PENNSYLVANIA EX REL. DOROTHY K. LUTZ
v.
J. ELMER LUTZ, JR., APPELLANT



Nos. 914 and 1077 Philadelphia, 1981, Appeals from the Order and Judgment of the Court of Common Pleas of Berks County, Criminal Division, at No. 1135S of 1977.

COUNSEL

Daniel E. P. Bausher, Reading, for appellant.

David S. Rasner, Philadelphia, for appellee.

Beck, Watkins and Hoffman, JJ.

Author: Hoffman

[ 298 Pa. Super. Page 475]

This is an appeal from an order directing appellant to pay support to his appellee-wife and a judgment entered pursuant to that order. For the reasons that follow, we: (1) vacate the order of March 27, 1981 and the judgment entered April 9, 1981; and (2) reinstate and affirm the order of November 2, 1979.

Following their marriage on December 24, 1974, the parties resided in the second-floor apartment of appellant's house, adjacent to his funeral home. Marital difficulties arose in 1975, stemming in part from appellant's manic depressive condition and his purported impotence. The parties moved to a lavish, newly-constructed home at a local country club in November, 1976. Despite the new surroundings, appellant remained depressed and despondent. Three months later, the parties returned to the first-floor apartment of appellant's house, where their relationship deteriorated further. Appellant refused to discuss their marital problems. He also refused to socialize or entertain visitors. He accused appellee of being "not Godly," and wrote down

[ 298 Pa. Super. Page 476]

    the seven deadly sins and asked appellee where she fell with respect to them. In October, 1977, appellant invited a young couple he had met at Alcoholics Anonymous into the second-floor apartment. Shortly thereafter, appellant moved in with the couple. Later that month, appellant accused appellee of being a drug addict and of trying to poison him. He also informed her that she was part of his illness and that God had told him that their marriage was "no good." After consulting her doctor, appellee left the marital residence on October 24, 1977 and instituted this action for support. After a series of hearings, the lower court, on November 2, 1979, issued findings of fact, conclusions of law and an order directing appellant to pay appellee $300 per week in support retroactive to April 28, 1978. Appellant filed exceptions to the findings and order, and the lower court ordered argument before the court en banc. On August 21, 1980, the lower court, sua sponte, ordered appellant to show cause why his exceptions should not be stricken as unauthorized by the Rules of Civil Procedure. The lower court subsequently determined that its order of November 2, 1979 was final and that no exceptions could be filed. It decided, however, to treat appellant's exceptions as a petition for reconsideration, and held argument thereon. On March 27, 1981, the lower court issued new findings of fact, and an order requiring appellant to pay $300 per week from April 28, 1978 until January 1, 1979, and $350 per week thereafter. This appeal followed.

Appellant contends first that the lower court erred in holding that exceptions were precluded by the Rules of Civil Procedure. We agree. "There is no question but that exceptions must be filed to a support order to preserve objections for appeal." Paul v. Paul, 281 Pa. Superior Ct. 202, 210 n.11, 421 A.2d 1219, 1223 n.11 (1980).*fn1 See also Commonwealth v. Bankert, 295 Pa. Superior Ct. 423, 441 A.2d 1304 (1982). By treating appellant's exceptions as a

[ 298 Pa. Super. Page 477]

    petition for reconsideration, however, the lower court, in fact reviewed its decision in light of appellant's exceptions. Accordingly, rather than remanding the matter to allow the lower court to entertain appellant's exceptions, we will review the lower court's reconsideration insofar as it responds to the issues raised by the exceptions.*fn2

"Our standard of review in support cases is limited, and a support order, if supported by competent evidence, will not be reversed absent an abuse of discretion by the lower court." Commonwealth ex rel. Kinsey v. Kinsey, 277 Pa. Superior Ct. 156, 158, 419 A.2d 708, 710 (1980). Because "the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits," this Court's function is to determine whether there is sufficient evidence to sustain the lower court's findings of fact or whether the lower court has misapplied the law. Commonwealth ex rel. Friedman v. Friedman, ...


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