Commonwealth Ex Rel. Lubanski v. Lubanski

Superior Court of Pennsylvania

Commonwealth Ex Rel. Lubanski v. Lubanski

69 A.2d 440, 165 Pa. Super. 603, 1949 Pa. Super. LEXIS 510

CourtSuperior Court of Pennsylvania

DecidedOctober 11, 1949

DocketAppeal, 308

StatusPublished

Cited by5 cases

This text of 69 A.2d 440 (Commonwealth Ex Rel. Lubanski v. Lubanski) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth Ex Rel. Lubanski v. Lubanski, 69 A.2d 440, 165 Pa. Super. 603, 1949 Pa. Super. LEXIS 510 (Pa. Ct. App. 1949).

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Opinion

Opinion by

Fine, J.,

This is an appeal by a husband from an order for the support of his wife and child. He complains that the court below erred in entering an order because the wife refused to accept his offers of reconciliation and because the order of $15.00 a week, if restricted to the support of the child, is not warranted by his earnings.

The wife testified the parties were married on June 30,1947; that in October, 1948, appellant, without cause, left her; that their daughter, Melanie, was born November 5, 1948; and, that appellant has neglected to maintain and support both her and the child. There is no merit to appellant’s contention that his wife’s right to support is barred because she has causelessly refused to accept his offer of reconciliation made prior to the last hearing on July 21, 1949. It is true that where a husband and wife are living apart and the husband, in good faith, makes an offer of reconciliation which is refused by the wife, such refusal on the part of the wife will be sufficient to bar her right to support. Conversely stated, she becomes a deserter and such conduct, if persisted in for two years, gives her husband cause for divorce.

After three hearings, during which time there was ample opportunity to observe the demeanor and attitude of the appellant and to hear him, the court below concluded that his offer of reconciliation was not bona fide. Bona fides must constitute the very essence of a proffered reconciliation, for appéllee’s right to support is not to be cut off by a meaningless pretense or an isolated strategem. “It may have the hand of Esau, and yet betray the voice of Jacob. . . : McClurg’s Appeal, 66 Pa. 366, 373. A broad discretion is lodged in the court below on the matter of bona fides and we will not reverse in the absence of manifest abuse of this discretion. “A judge Avho sees and hears the witnesses ... is in better position than Ave to decide the issue on its merits . . . and *605 our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion”: Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 57 A. 2d 720.

Haying concluded that the court below did not err. in entering an order for the support of the wife, it is unnecessary to discuss the reasonableness of the amount directed to be paid for the support of both the wife and the child. Appellant concedes that if the order in fayor of the wife is proper the amount of $15.00 a week is reasonable.

Order affirmed.

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Opinion by

Fine, J.,

This is an appeal by a husband from an order for the support of his wife and child. He complains that the court below erred in entering an order because the wife refused to accept his offers of reconciliation and because the order of $15.00 a week, if restricted to the support of the child, is not warranted by his earnings.

The wife testified the parties were married on June 30,1947; that in October, 1948, appellant, without cause, left her; that their daughter, Melanie, was born November 5, 1948; and, that appellant has neglected to maintain and support both her and the child. There is no merit to appellant’s contention that his wife’s right to support is barred because she has causelessly refused to accept his offer of reconciliation made prior to the last hearing on July 21, 1949. It is true that where a husband and wife are living apart and the husband, in good faith, makes an offer of reconciliation which is refused by the wife, such refusal on the part of the wife will be sufficient to bar her right to support. Conversely stated, she becomes a deserter and such conduct, if persisted in for two years, gives her husband cause for divorce.

After three hearings, during which time there was ample opportunity to observe the demeanor and attitude of the appellant and to hear him, the court below concluded that his offer of reconciliation was not bona fide. Bona fides must constitute the very essence of a proffered reconciliation, for appéllee’s right to support is not to be cut off by a meaningless pretense or an isolated strategem. “It may have the hand of Esau, and yet betray the voice of Jacob. . . : McClurg’s Appeal, 66 Pa. 366, 373. A broad discretion is lodged in the court below on the matter of bona fides and we will not reverse in the absence of manifest abuse of this discretion. “A judge Avho sees and hears the witnesses ... is in better position than Ave to decide the issue on its merits . . . and *605 our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion”: Commonwealth ex rel. Pinkenson v. Pinkenson, 162 Pa. Superior Ct. 227, 57 A. 2d 720.

Haying concluded that the court below did not err. in entering an order for the support of the wife, it is unnecessary to discuss the reasonableness of the amount directed to be paid for the support of both the wife and the child. Appellant concedes that if the order in fayor of the wife is proper the amount of $15.00 a week is reasonable.

Order affirmed.

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69 A.2d 440, 165 Pa. Super. 603, 1949 Pa. Super. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-lubanski-v-lubanski-pasuperct-1949.

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