LEHIGH COUNTY LAW JOURNAL VOLUME VII. FLICKINGER v. FLICKINGER. Divorce Alimony and Counsel Fees. In a proceeding in divorce, the husband will not be required to pay to his wife for the support and maintenance of the children, especially when the husband is willing to take care of the children, and the wife refuses to give them up. Much less will an order be made on the husband to pay arrearages for support of children on his prior agreement in a proceeding for support. Reasonable alimony and a counsel fee fixed. In the Court of Common Pleas of Lehigh County. Leon L. Flickinger v. Laura L. Flickinger. No. 61 April Term, 1914. In Divorce. Rule for Alimony and a Counsel Fee. James L. Schaadt, for Rules. W. LaMonte Gillette and Samuel J. Kistler, Contra. Groman, P. J., February 21, 1916. The libel in this proceeding in divorce charges desertion; the subpoena was allowed February 16, 1914; service had upon the respondent October 14, 1915; a petition for alimony in a sum equal to the arrears due for the support of two children, and counsel fees was presented; a rule allowed and an answer to the rule filed. It appears the parties were married on March 25, 1906, and lived together as husband and wife until October 4th, 1912. They have two children—a daughter nine years old and a son eight years old. The respondent had the libellant arrested for support, the case was returned to the Quarter Sessions of Lehigh County as of No. 43 October Sessions, 1912; on November 2, 1912, a nol pros. was entered, the defendant agreeing to pay the sum of Five ($5) Dollars per week; payment for some reason or other was later on discon tinued; the amount claimed as due for support of the children is Three Hundred and Sixty ($360.00) Dollars. The libellant earns Eighty ($80.00) Dollars a month and is willing to take the children, but the wife refuses to deliver them to the libellant. On a rule pendente lite, the Court will not compel the husband to pay his wife anything for the support and maintenance of the children especially when the husband is willing to take care of the children and the wife refuses to give them up: Bloom v. Bloom, 17 Pa. County Court Reports, Page 478, much less would the Court make an order compelling the husband to pay arrearages for support of the children on demand for alimony. The question before us requiring consideration is the allowance of alimony and counsel fees; in Fernald v. Fernald, 41 Weekly Notes of Cases, Page 214, Judge Rice speaking for the Superior Court laid down the rule to be: "that a husband, who is libellant in a divorce case, may be required to pay the proper expenses of his wife in the conduct of her defence: what expenses shall be paid will depend upon the circumstances of the particular case, and their allowance is within the sound discretion of the court having jurisdiction of the divorce proceeding, regard being had to the husband's ability and the wife's necessity." On the hearing of a rule for alimony and counsel fees the court will not consider evidence tending to prove the allegations contained in the libel and answer thereto: Kline v. Kline, 1 Phila., Page 383; Downing v. Downing, 7 Kulp, Page 138. The wife must subsist and is entitled to funds necessary for the vindication of her rights, and for which purpose alimony and counsel fees are allowed by the court; the amount is entirely within the discretion of the court: Graves v. Cole, 19 Pa. St., Page 171; Banes v. Banes, 3 Brewster, Page 612; Breinig v. Breinig, 26 Pa. St., Page 161. The courts have held that even where the wife was convicted of felony which it would appear would not require counsel, upon a rule if she wishes to defend, alimony was allowed: Van Riper v. Van Riper, 3 Lancaster L. R., Page 107. Where the husband was in feeble health and needed all his income, an order for counsel fees was made: Schureman v. Schureman, 7 Pa. County Court Reports, Page 100. As before indicated, the libellant earns Eighty ($80.00) Dollars per month and pays nothing for the support of his wife and children at the present time, Five ($5.00) Dollars a week alimony for his wife, and counsel fees amounting to Fifty ($50) Dollars would seem to be reasonable under all the circumstances of this case. Now February 21, 1916, rule for alimony and counsel fees made absolute, the alimony to be paid by the libellant to the respondent during the pending of these proceedings in divorce is fixed at Five ($5.00) Dollars per week from the date of this order; Fifty ($50.00) is also allowed for counsel fees. COMMONWEALTH v. LEBO. Fish Laws-Deterring Fish Warden-Act of May 1, 1909, P. L. 353, Sec. 25. A defendant cannot be convicted of violating section 25, of the Act of May 1, 1909, P. L. 353, on a vague threat; it not being shown that any person was at that time and place violating the fish act, and that the fish warden was about to make an arrest, or that the defendant, by threat, menace or force or in any manner attempted to deter or prevent the fish warden from performing his duty. In the Court of Quarter Sessions of Lehigh County. Commonwealth of Pennsylvania v. Harry D. Lebo. Appeal on Special Allocatur. Allen W. Hagenbuch, for Commonwealth. Groman, P. J., February 21, 1916. The defendant, Lebo, was arrested for violating Section 25 of the Act of May 1st, 1909, P. L. 353, which reads as follows: "Any person or persons who shall by threat, menace or force, or in any manner attempt to deter or prevent any fish warden, or other person authorized to make arrests for violation of the fish laws, from enforcing or carrying into effect any provision of this act," etc. After a hearing before the alderman, the defendant was found guilty and sentence imposed; on May 9th, 1914, a rule to show cause why a special allocatur should not be allowed was entered; on June 28th, 1915, the rule for a special allocatur was made absolute and an appeal allowed. On December 21st, 1915, counsel for parties filed an agreement to submit the matter upon the entire record in the case; depositions had been taken previously. This agreement then would have the same force and effect as though a hearing was had on this appeal. Upon a reference to the testimony taken before the alderman on the part of the Commonwealth, we find the following set out in the justice's transcript: W. J. Acker called and sworn, states: "that he was looking for fish law violators, at or near the pumping station of the City of Allentown; the defendant, Harry Lebo, after watching the warden for some time and after being told by the warden that he had deterred him from doing his duty, which he (defendant) denied, and then said to the warden: "You are going to get a god dam good licking some time, and the gun you carry we will take away from you. Under cross-examination Acker stated that he had knowledge that a fellow was looping fish near there and was watching him in order to arrest him. Referring to the depositions filed in this case, we find the depositions throw no additional light on the testimony of Acker. There was no testimony on the part of the Commonwealth showing that any person was at that time and place violating the fish act, and that the fish warden was about to make an arrest, or that the defendant, Lebo, by threat, menace or force or in any manner attempted to deter or prevent the fish warden from performing his duty. This is practically all the testimony adduced on the part of the Commonwealth before the alderman relavant to the question involved. Edwin Shutt called and sworn before the alderman testified that he heard Lebo say while Acker passed the pumping station, "There goes the son of a bitch," then "There goes the crook," that "the warden would get a damn good licking one of these nights and the gun taken away from him." deposition of Harvey Held who was called and sworn is as follows: The Q. Did Lebo say anything to you? A. No, it was Shutt who came over and said: 'You better look out, the fish warden is over here watching you.' I said, 'Let him watch; I don't care; I am fishing within the law; I am always fishing.' When did you say that? To whom did you say, "I don't care?" A. To Shutt. Q. Did you say that the day that Lebo was there? A. Yes. Q. Did Lebo in any way send a warning to you? A. No. Q. Did Lebo say anything to you? A. No, sir. Q. Had you and the other gentleman any conversa. tion or warning from Lebo? A. No. Q. When did you see Lebo and Acker together? A. Right after that; they were over there. What they said I couldn't hear. Q. You said Lebo in no way, as far as you know, interfered with the arrest? A. No, it was Shutt that hollered over, "you better watch out, Acker is over here watching you." I said, "I don't care, I am fishing within the law." The statute in question being a penal statute or quasi penal statute must be strictly construed. The testimony submitted by the Commonwealth to warrant a conviction must be clear, convincing and free from doubt. The testimony of the Commonwealth itself leaves a doubt, and taking in connection therewith the testimony of the defendant and the witnesses called in his behalf, it seems to the Court that a very serious doubt was raised, that the defendant was entitled to the benefit of the doubt, and that the conviction before the alderman cannot be sustained. The testimony of the Commonwealth would seem to indicate that the charge before the alderman, if anything, should have been surety of the peace instead of charging a violation of the fish act in question. Now February 21, 1916, defendant discharged. BURKEY v. BURKEY. Divorce-Desertion-Intention to Desert-Domicile. Where a wife and husband have, by common consent, lived apart from each other with their own relatives until they could earn money to go to housekeeping, and the wife subsequently leaves the place she had been living, and goes to another city, and coincident with her departure sends a letter to her husband stating her dissatisfaction with the original arrangement, and her intention to remain away, saying that she cannot tell if she will ever see him again, her leaving constitutes desertion, and the husband is entitled to a divorce, the desertion having continued for more than two years. |