No. 85 Philadelphia, 1983, Appeal from the Order Entered on December 14, 1982 in the Court of Common Pleas of Northampton County, Civil Division, No. DR114582
Nathan L. Reibman, Easton, for appellant.
Richard J. Shiroff, Easton, for appellee.
McEwen, Tamilia and Cercone, JJ.
[ 337 Pa. Super. Page 441]
This is a support case in which the court below denied the appellant-wife's claim on the ground that she had committed
[ 337 Pa. Super. Page 442]
adultery. Finding the evidence insufficient to support that conclusion, we reverse.
The record reveals that the parties were married in October of 1961, and cohabited until January of 1980 when appellee-husband left the marital household. On August 31, 1982, appellant petitioned for support and a hearing was held on October 7, 1982. At this first hearing, appellant testified that after appellee left she remained in the home while he paid the bills and gave her $50.00 a week for support. In mid-August of 1982, however, they had a dispute over the disposition of their joint property and appellee reclaimed possession of the marital residence. Appellant testified that she found herself without funds or shelter and, as a result, she moved into the home of a friend, Roger Melgary, whom she intended to pay back when able.
Based on the evidence presented at the hearing of October 7, 1982, the lower court on October 13, 1982, ordered appellee to pay support in the amount of $130.00 per week. Appellee then appealed that order to this court and, in addition, filed a timely motion for reconsideration with the lower court. Appellee's request for reconsideration was granted and a second hearing was scheduled for December 9, 1982.*fn1
At the second hearing, appellant was called to testify as of cross-examination regarding her living arrangements with Mr. Melgary. She explained that he is a widower and former neighbor whom she has known for eight years. Appellant testified that while staying at Mr. Melgary's residence she had her own bedroom and bathroom as well as kitchen privileges. Although Mr. Melgary paid all of the household expenses and advanced appellant money for her personal needs, it was understood that when financially able she would reimburse him for her stay. Mrs. Roach acknowledged that she had gone out socially with Mr. Melgary on occasion.
[ 337 Pa. Super. Page 443]
Appellee's only other witness was a private investigator whose testimony can best be characterized as inconsequential. Based upon brief surveillance of Mr. Melgary's home, he simply confirmed what Mrs. Roach candidly ...