Opinion
December 11, 1970.
March 23, 1971.
Husband and Wife — Support — Separation by mutual consent — Continuance of liability of husband to support wife.
Where a husband and wife separate by mutual consent, the legal obligation of the husband to support the wife continues.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERC0NE, JJ.
Appeal, No. 1579, Oct. T., 1970, from order of Court of Common Pleas of Delaware County, Sept. T., 1970, No. F-16-122, in case of Commonwealth of Pennsylvania ex rel. Paulette R. Lewis v. Joseph Lewis. Order reversed and case remanded.
Nonsupport. Before REED, JR., J.
Order entered for support of minor child, and denying support for relatrix, wife. Relatrix appealed.
Stephen A. McBride, with him Kassab, Cherry, Curran Archbold, for relatrix, appellant.
Joseph E. Pappano, with him Robert F. Pappano, and Pappano Pappano, for appellee.
Argued: December 11, 1970.
Appellant-wife brought an action for support of herself and one child. An order was entered requiring appellee-husband to provide support for the child in the amount of $25.00 per week. Support for the wife was denied, and this appeal followed.
The lower court correctly stated the law that "[a] voluntary withdrawal of the wife from the husband must, in order to justify the payment of support, be based either upon the consent of the husband or upon adequate legal reason." Commonwealth ex rel. Rovner v. Rovner, 177 Pa. Super. 122, 124, 111 A.2d 160, 162 (1955); Commonwealth ex rel. Miller v. Miller, 209 Pa. Super. 196, 223 A.2d 917 (1966). That is, if the husband consents to his separation from his wife, his legal obligation to support her continues.
The court below found that "[w]e may assume in these circumstances, the separation was with the husband's consent. However, it is also clear that it is with the wife's consent and approval, neither one wants to live with the other. . . . This separation is with the well expressed consent and agreement of both." There was ample support in the record for this conclusion.
Since the husband consented to being separated from his wife, he has a continued obligation to support her. Accordingly, the order of the lower court is reversed and the case remanded for a rehearing to determine the proper amount of support to which the wife is entitled.