Commonwealth ex rel. Loosley v. Loosley , 236 Pa. Super. 389 ( 1975 )

Opinion by

Van der Voort, J.,

Appeal is taken to this Court from an Order of Judge Domenic D. Jerome denying appellant’s petition for support. The question for our consideration is whether the lower court abused its discretion in denying support to appellee’s spouse, there having been no divorce and appellant haying left the abode of her husband.

Our appellate review of the record will extend only to a determination of whether there is sufficient evidence to sustain the Order entered. “It has been repeatedly stated that, in a support proceeding, we will not interfere with the determination of the lower court unless there has been a clear abuse of discretion.” Commonwealth ex rel. McCuff v. McCuff, 196 Pa. Superior Ct. 320, 324, 175 A.2d 124, 126 (1961). Such a finding by our Court will not be made lightly, but only upon clear and convincing evidence. Commonwealth ex rel. Halderman v. Halderman, 230 Pa. Superior Ct. 125, 326 A.2d 908 (1974). In order to determine whether there exists such clear and convincing evidence to overturn an order against a spouse who has left the abode, we are guided by Halderman, supra, at 128:

“The law governing the burden of proof in an action for support and maintenance following a non-consensual, voluntary withdrawal of the wife from the common abode, is well settled. In such an instance, it is not necessary for the wife to present grounds for leaving her husband which would entitle her to divorce in order to procure an order of support. (Citations omitted). The wife need only show by sufficient evidence a reasonable cause that would justify her voluntary withdrawal from the common domicile.”

Without such reasonable grounds, the spouse who leaves is not entitled to support from the other spouse, whose argument by way of defense is that the departing spouse’s conduct would amount to valid grounds for divorce. See Commonwealth ex rel. Bergwerk v. Bergwerk, 228 Pa. Superior Ct. 190, 323 A.2d 243 (1974) and Commonwealth ex rel. Keeth v. Keeth, 223 Pa. Superior Ct. 96, 289 A.2d 732 (1972).

Uncontradicted testimony indicates that appellant and appellee exchanged bitter words in fits of anger, and that appellee was quite often angry at his wife’s dependence upon her family. Appellee knew that appellant was under treatment for a psychiatric disorder and that his conduct, such as moving to another bedroom for sleeping, made her quite nervous. Appellee .on numerous occasions informed his wife that he wanted a divorce. There is testimony that appellee in some degree struck appellant’s upper arm, a bruise having resulted.

Based upon our reading of the testimony, we conclude that appellant met her burden of proving that her home life was sufficiently difficult as to justify her withdrawing from the common abode. This is especially so in light of appellee’s knowledge of his wife’s psychiatric problem and the lack of his testimony that her conduct in relation to his actions was independent of her mental and emotional instability. See Boggs v. Boggs, 221 Pa. Superior Ct. 22, 289 A.2d 479 (1972).¹ We cannot conclude that appellant’s leaving was consensual as appellee has denied ever encouraging his wife’s withdrawal. Nor can we surmise that appellee has presented a case showing that appellant’s conduct has established for him adequate grounds for divorce, testimony hereon not being present. We therefore hold that appellant has proved reasonable grounds for separating from her husband and that she is entitled to support. See Commonwealth ex rel. Thompson v. Thompson, 220 Pa. Superior Ct. 400, 289 A.2d 183 (1972). The lower court has abused its discretion by failing to address itself to the quantum of proof of reasonable grounds to withdraw presented by appellant, and to the lack of appellee’s testimony by way of defense.

Order reversed, and the case is remanded to the lower court with an order for it to proceed in accordance with this opinion and to determine a just and equitable amount of support entitlement for appellant.

Spaeth, J., concurs in the result.

1 . This case was before us again in 222 Pa. Superior Ct. 209, 294 A.2d 925 (1972).