HomeMy WebLinkAbout92-0849 CivilCAREN J. McKEE, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. CIVIL ACTION - SUPPORT
DOMESTIC RELATIONS SECTION
DWIGHT L. McKEE,
Defendant NO. 849 SUPPORT 1992
IN RE: PETITION FOR SPOUSAL SUPPORT
BEFORE OLER. J
ORDER OF COURT
AND NOW, this 20th day of May, 1993, upon careful
consideration of the Plaintiff's complaint for spousal support,
and following a hearing at which the testimony of the parties
has been received by the Court, the Plaintif.f's request for
spousal support is denied. The Defendant's responsibility for
child support as previously determined shall remain in full
force and effect.
By the Court,
J Wesley O1 Jr., J.
John W. Purcell, Jr., Esquire
Counsel for Plaintiff
Jeffrey A. Sunday, Esquire
Counsel for Defendant
DRO
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CAREN J. McKEE, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. CIVIL ACTION - SUPPORT
DOMESTIC RELATIONS SECTION
DWIGHT L. McKEE, ,
Defendant NO. 849 SUPPORT 1992
IN RE: COMPLAINT FOR SPOUSAL SUPPORT
Oler, J.
BEFORE OILER, J
OPINION AND ORDER OF COURT
At issue in the present case is the complaint for
spousal support filed by Caren J. McKee against Dwight L. McKee.
A hearing was held on this matter on Thursday, May 13, 1993, and
Thursday, May 20, 1993. Based upon .the evidence presented at
the hearing, the following Findings of Fact, Discussion and
Order of Court are made and entered:
FINDINGS OF FACT
1. The Plaintiff is Caren J. McKee, and the Defendant
is Dwight L. McKee.
2. The parties were married on January 17, 1986, and
separated in August of 1992.
3. The Defendant adopted the two children of the
Plaintiff by a prior marriage, Duane J. McKee and Collin D.
McKee, and is presently under a support obligation with
respect to their maintenance.
4. It has not been shown in these proceedings that
either party has given the other party grounds for divorce.
5. Unhappy differences have arisen between the
parties, centering around the religions of the two parties, and
the Court finds that responsibility for these differences must
be shared equally by both parties.
6. Plaintiff left the marital residence and has
established her own residence as a result of the differences
which have arisen.
DISCUSSION
"Spousal support is defined as 'care, maintenance and
financial assistance.' A potential right to spousal support
arises when spouses separate." Frank & Gale, Pennsylvania
Family Practice Manual, Section 5.04, at 126 (1990).
"The primary tactical considerations in a spousal
support action are the affirmative defenses that may be raised
to the same. The first such defense is that the moving,party
has left the marital residence without just cause or the consent
of the other spouse.... The moving party is not required to
present as a basis of leaving grounds which would entitle that
party to a fault divorce; rather, the moving party need only
show adequate legal cause for leaving.... The spouse seeking
support has the burden of proving by sufficient evidence an
'adequate legal cause' for leaving the marital residence,
which is defined as any cause that justifies the spouse's
departure. Id. at 126-27.
"The phrase adequate legal cause for leaving is not
subject to exact definition. It must be interpreted based on
the facts of each case. A spouse who over a period of time
suffers psychological oppression may be harmed as much as a
spouse who suffers physical injury.... (T]he law should not
impose on a spouse the duty of support where his or her mate
departs the marital residence maliciously or casually on whim or
caprice." Myers v. Myers, Pa. Super. 592
A.2d 339, 341 (1991).
In the present case, the Court has found that the
Defendant is not the primary cause of the Plaintiff's departure
from the marital residence, in that it is found that both
parties share responsibility for the incompatibility which
presently exists. For that reason, the Court does not believe
that the Defendant must bear the responsibility of spousal
support on the theory that Plaintiff has shown she was legally
justified in leaving the residence.
ORDER OF COURT
AND NOW, this 20th day of May, 1993, upon careful
consideration of the Plaintiff's complaint for spousal support,
and following a hearing at which the testimony of the parties
has been received by the Court, the Plaintiff's request for
spousal support is denied. The Defendant's responsibility for
child support as previously determined shall remain in full
force and effect.
By the Court,
/s/ J. Wesley Oler Jr
J.
John W. Purcell, Jr., Esquire
Counsel for Plaintiff
Jeffrey A. Sunday, Esquire
Counsel for Defendant
DRO
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