Fling v. Fling

11 Pa. D. & C.4th 193, 1991 Pa. Dist. & Cnty. Dec. LEXIS 194
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJuly 1, 1991
Docketno. 54 N 1990
StatusPublished

This text of 11 Pa. D. & C.4th 193 (Fling v. Fling) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fling v. Fling, 11 Pa. D. & C.4th 193, 1991 Pa. Dist. & Cnty. Dec. LEXIS 194 (Pa. Super. Ct. 1991).

Opinion

ENDY, J.,

This matter is before the court on plaintiff’s exceptions to the findings and recommendations- of our hearing officer after an evidentiary hearing held pursuant to Pa.R.C.P. 1910.12. The notes of testimony of that hearing have been reviewed and the briefs and oral arguments of counsel carefully considered.

The hearing officer, Katherine B.L. Platt, Esq., found that plaintiff and defendant are still residing under the same roof. Defendant is paying all of the household expenses, all of pláintiff’s medical expenses and virtually all miscellaneous expenses. She concluded that the few personal expenses of plaintiff which are not being paid by defendant are not in the nature of necessities, thus plaintiff is not entitled to receive spousal support from defendant.

Plaintiff’s exceptions 1, 2, 3 and 4 redundantly address the single issue of entitlement to support where the husband and wife are residing together. The benchmark case in this matter is Commonwealth v. George, 358 Pa. 118, 56 A.2d 228 (1948), most recently reaffirmed in Shilling v. Shilling, 394 Pa. Super. 154, 575 A.2d 145 (1990). In George, the Supreme Court decided that where:

“[T]he husband provides a home, food, clothing and reasonable medical attention, he cannot be directed to pay a given stipend to the wife so that she -may have it available for her own personal disposition. The method whereby a husband secures to his wife and family the necessities of life is not a proper subject for judicial consideration and determination in the absence of proof of desertion without cause or neglect to maintain.” George, supra.

[195]*195The George rule has been the standard by which all succeeding cases raising this issue have been adjudged. Although the court will not normally intervene when the parties are still iiving together, we have ruled that it must do so when the family is not being provided with food, clothing, or medical attention. A husband who merely pays some of the mortgage payments, the electric bill and some of his wife’s phone bills is not adequately supporting his family. Kramer v. Kramer, 30 Chester L. Rep. 273, 275 (1982). A look at the historical development in this line of cases reveals that where the parties are living together and support is sought, the result is driven by the facts and a case-by-case consideration of the circumstances particular to each has been the court’s method of resolution. This was the approach utilized in Shilling.

In Shilling, the court’s focus was clearly on weighing the facts as found by the trial court. The parties both lived in the marital residence, but the husband spent as many as three nights a week at someone else’s home. Defendant paid the electric, water, sewage, real estate taxes on marital and rental property, health insurance for plaintiff and one minor child as well as all unreimbursed dental and medical bills. He allowed plaintiff to transfer $5,000 from a joint savings into her own name for her personal use. Plaintiff also had additional income of $200 per month on jointly owned rental property and $200 per month room and board from the parties’ adult son. She paid the doctor bills for the parties’ minor child, the cable TV bill, clothing and her own groceries. She had always been unemployed. On these facts, the Superior Court reversed the trial court’s order for support. The court held that there was no evidence of obvious neglect by defendant to maintain his wife and minor son. [196]*196Shilling, supra. Most cases prior to Shilling that relied on the basic rule established in George have likewise found no basis for granting a support order. See Commonwealth ex rel. Goldstein v. Goldstein, 271 Pa. Super. 389, 413 A.2d 721 (1979); Scuro v. Scuro, 226 Pa. Super. 592, 323 A.2d 49 (1974); Commonwealth ex rel. Gauby v. Gauby, 223 Pa. Super. 92, 289 A.2d 745 (1972); Commonwealth ex rel. Glenn v. Glenn, 208 Pa. Super. 206, 222 A.2d 465 (1966).

Faced with a set of facts similar to those in Kramer, the Superior Court appears to have affirmed our rationale there by holding that “where a husband fails to provide food and money for reasonable personal expenses, an order for support is merited.” Biler v. Biler, 353 Pa. Super. 49, 508 A.2d 1261 (1986). The Biler court simply found that the parties were situated similarly to those in Commonwealth ex rel. Powelson v. Powelson, 277 Pa. Super. 220, 419 A.2d 741 (1980). In Powelson, the héaring judge determined that “the husband has almost totally failed to provide food for the wife. . . . He [husband] cannot be heard to contend that he is adequately supporting his wife by simply providing shelter for her and paying utilities.” Id. As part of this scenario, the Bilers had not spoken to each other for approximately two years and, from a net monthly income of $2300, the husband gave his wife only $200 per month. On this set of facts the Superior Court affirmed the lower court’s order of $400 per month. „

The Biler court also discussed the issue of “separate and apart” found in the Divorce Code. It adopted the interpretation that it is the existence of separate lives, not separate roofs, that is applicable to support law. The court held that the parties’ living arrangements constituted a separation and although [197]*197defendant did purchase food, his wife’s medical condition required a special diet for which he did not provide. In addition, the court allowed, support for such reasonable expenses as maintenance of plaintiff’s automobile and personal expenses such as clothing, entertainment, toiletries and dry cleaning.

The analysis undertaken in both Shilling and Biler is clearly a factual one. Not only should a court consider if the facts reveal a separation before it can grant an Order for support, but more significantly, whether the plaintiff being adequately provided for. The facts in the instant case reveal that defendant is providing adequate support. The parties were married on February 10, 1973. For approximately the last two years, they have remained in the marital residence but have slept in separate bedrooms. The husband pays the following: all household expenses, mortgage, food, transportation, electric, oil, telephone, real estate taxes, homeowner’s insurance, health insurance, and the deductible, fuel for and repairs to his wife’s vehicle, auto insurance and all of wife’s prescriptions.

Plaintiff has not been able to work since 1989 due to a back injury for which she receives extensive medical treatment which renders, her unable to work. Plaintiff testified that her doctor bills average $50 a month and prescriptions average $300 a month, both of which her husband pays.

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Related

Commonwealth Ex Rel. Gauby v. Gauby
289 A.2d 745 (Superior Court of Pennsylvania, 1972)
Shilling v. Shilling
575 A.2d 145 (Supreme Court of Pennsylvania, 1990)
Biler v. Biler
508 A.2d 1261 (Supreme Court of Pennsylvania, 1986)
Scuro v. Scuro
323 A.2d 49 (Superior Court of Pennsylvania, 1974)
Commonwealth Ex Rel. Goldstein v. Goldstein
413 A.2d 721 (Superior Court of Pennsylvania, 1979)
Commonwealth Ex Rel. Powelson v. Powelson
419 A.2d 741 (Superior Court of Pennsylvania, 1980)
Commonwealth Ex Rel. Glenn v. Glenn
222 A.2d 465 (Superior Court of Pennsylvania, 1966)
Commonwealth v. George
56 A.2d 228 (Supreme Court of Pennsylvania, 1947)

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Bluebook (online)
11 Pa. D. & C.4th 193, 1991 Pa. Dist. & Cnty. Dec. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fling-v-fling-pactcomplcheste-1991.