J-S30039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JUDITH A. FOWLER,                         :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
BRUCE A. FOWLER,                          :
                                          :
                 Appellant                :    No. 73 WDA 2018

                 Appeal from the Order December 13, 2017
              in the Court of Common Pleas of Fayette County
                 Domestic Relations at No(s): 375 DR 2017

BEFORE:    BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED APRIL 16, 2019

     Bruce A. Fowler (Husband) appeals from the December 13, 2017

spousal support order1 requiring him to pay a support obligation to Judith A.

Fowler (Wife). Upon review, we reverse.

     Husband and Wife were married on or about October 29, 19982 and

separated on July 16, 2017. Following a verbal dispute, Wife left the marital

home on July 16, 2017. On August 21, 2017, Wife filed for spousal support.

1  As of the date of the spousal support order, neither Husband nor Wife had
filed for divorce. See N.T., 12/11/2017, at 3, 9, 14, 21. Hoffman v.
Hoffman, 762 A.2d 766, 769 (Pa. Super. 2000) (A “spousal support order is
appealable where no divorce action was pending at the time the support
order was entered.”).

2 When Wife filed for support, she indicated they were married on this date,
but Wife later testified they were married on October 31, 1998. Complaint
for Support, 8/21/2017, at 1; N.T., 12/11/2017, at 3.




*Retired Senior Judge assigned to the Superior Court.
J-S30039-18


The trial court ordered Husband to appear on September 11, 2017 before a

domestic relations conference officer for a conference on Wife’s support

complaint. Order, 8/22/2017, at 1. While the record is unclear as to what

happened, it appears the parties attended said conference, and the

conference officer recommended Wife’s complaint for support be denied.

See N.T., 12/11/2017, at 9-10, 25.       Thereafter, the trial court dismissed

without prejudice Wife’s complaint for support due to there being “no

entitlement to spousal support established.” Order, 9/18/2017.

      Wife then filed a demand for a de novo hearing before the trial court,

claiming that Husband had lied at the conference. Following the December

11, 2017 de novo hearing, the trial court determined that Wife had adequate

legal cause to leave the marital home due to her mental illness. Trial Court

Opinion, 2/27/2018, at 5; N.T., 12/11/2017, at 26. The trial court granted

Wife’s request for spousal support, but ordered the support to begin as of

the date of the hearing, not the filing of Wife’s petition. Final Order of Court,

12/20/2017, at 1; N.T., 12/11/2017, at 26. The trial court entered its final

order on December 20, 2017, effective December 11, 2017, which

determined Husband’s monthly net income to be $3,626.67 and Wife’s

monthly net income to be zero dollars, and directed Husband to pay $1,5003


3 The amount of Husband’s monthly support obligation is unclear from the
record. The first page of the order sets Husband’s obligation at $1,500 per
month due forthwith, and sets arrears at $1,001.79 due in full immediately.
(Footnote Continued Next Page)



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per month in spousal support and $1,001.79 in arrears.4           Husband timely

filed a notice of appeal on January 5, 2018.           Both Husband and the trial

court complied with Pa.R.A.P. 1925.5

        Husband raises the following issue on appeal:

        Whether the trial court erred in awarding spousal support to
        [Wife] when the court determined that [Wife] was not entitled to
        spousal support from the filing of the complaint for support on
        August 21, 2017, and then awarded spousal support from the
        date of the de novo hearing on December 11, 2017[?]

Husband’s Brief at 4 (suggested answer omitted).

        We bear in mind the following.

        Our standard of review in spousal support cases is well settled:
        this Court must determine whether the trial court has abused its
        discretion. Absent an abuse of discretion or insufficient evidence
        to sustain the support order, this Court will not interfere with the
        broad discretion afforded the trial court. An abuse of discretion
(Footnote Continued)   _______________________



Final Order of Court, 12/20/2017, at 1. On the second page of the same
order, Husband’s obligation is set at $1,451 per month for current support,
and $49 per month in arrears. Id. at 2.

4   We are unable to determine how this arrearages number was calculated.

5 Before reaching the merits of Husband’s appeal, we remanded this case to
address an issue regarding Wife’s representation by counsel. Fowler v.
Fowler, 195 A.3d 979 (Pa. Super. 2018) (unpublished memorandum).
Based on the record, it appeared that Wife had been represented by Ricardo
J. Cicconi, Esquire at the de novo hearing, but on appeal, he stated to this
Court that he did not represent Wife in his capacity as Domestic Relations
Solicitor of Fayette County Court of Common Pleas. By order dated August
27, 2018, the trial court granted Attorney Cicconi’s motion to withdraw as
counsel. Wife has had ample opportunity to file a pro se brief or to obtain
counsel to file a brief on her behalf in this Court, but she has not done so.
Thus, we will proceed.



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      is not merely an error of judgment, but rather a determination
      that the trial court has misapplied the law, or has exercised
      judgment which is manifestly unreasonable, or is the product of
      partiality, prejudice, bias or ill will as demonstrated by the
      evidence of record.

Speaker v. Speaker, 183 A.3d. 411, 415-16 (Pa. Super. 2018) (internal

citations and quotation marks omitted). “[T]he assessment of the credibility

of witnesses is within the sole province of the trial court.”   Hoffman, 762

A.2d at 770 (citation omitted).

      In the instant case, Husband contends Wife is not entitled to spousal

support because she unilaterally left their home without justification.

Husband’s Brief at 11.

      The trial court summarized the parties’ testimony at the de novo

hearing as follows.

             Wife [] testified that after 19 years of marriage[,] she left
      the marital residence on July 16, 2017, to live at her parents’
      home. Wife testified that she has no source of income. She
      previously volunteered as a firefighter and worked as a
      department manager at Kmart[,] with the paid job ending in
      2004 when the store downsized. Wife [wa]s receiving food
      stamps and she ha[d] made application for SSI for psychiatric
      problems but ha[d] not yet received a determination. Wife ha[d]
      not filed for divorce because she [could] not afford to do so.

            Wife testified that she and Husband were driving to church
      when Husband started screaming at her, that she exited the
      vehicle and began walking home; Husband picked her up and
      told her that she needed to call her dad because she needed
      somewhere else to live. According to Wife, Husband will not
      permit her to return to the marital home or to get her things
      from there.




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           Husband [] testified that he was injured while working as a
     mechanic for Advanced Disposal. He tore a ligament and ripped
     [his] ACL[,] which damaged a nerve[. He] has no feeling in his
     right hand and arm[,] rendering him incapable of performing his
     job as a mechanic. Husband receive[d] compensation weekly in
     the amount of $834.00.

           Husband testified that he did not ask Wife to leave the
     marital residence, that Wife was responsible for the physical act
     of paying the bills and that when she left, Husband learned the
     mortgage was three months[’] delinquent. Husband testified
     that after wife left[,] he found 27 gambling apps on her
     computer that she had entered their debit card to fund.
     According to Husband, Wife was not cleaning, cooking, or paying
     the bills for the home despite hi[s] providing her the money to
     do so. Husband testified that he drove Wife to Glass Cap Federal
     Credit Union, that Wife would go inside and tell Husband that
     she made the mortgage payment, but that he later learned she
     did not actually pay the mortgage for three months.

           Husband testified that he and Wife were on their way to
     church in July 2017 when the car tire spun in gravel and Wife
     began yelling and cursing at him. Wife jumped out of the car,
     and according to Husband, he turned around and picked her up,
     promising to remain silent so that she would get back in the car,
     and that he took her home without incident[,] telling her that he
     would go to church and leave the house for the day. When
     Husband returned home, Wife was gone. Husband went to
     Wife’s parent’s [sic] house the next day asking her to return
     home, [] which she refused.

            Husband testified that Wife later returned to the marital
     home several times where they would talk and Wife would leave
     with a “truckload of stuff of hers,” disputing that he did not
     permit her to take her things. Husband testified that he had
     visited Wife’s doctor, that he was told she [had been diagnosed
     with mental illnesses], and that Wife became violent with the
     medicine she was prescribed.[6] Upon inquiry of the [trial court],
     Husband testified that he does not welcome Wife back to the

6Husband testified about an incident where Wife attacked a man in public,
and Husband had to restrain her. N.T., 12/11/2017, at 23.



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      marital home because he does not want to be alone with Wife
      since she threatened that she could just say Husband had raped
      her and that he would “go to jail.”

Trial Court Opinion, 2/27/2018, at 1-3 (citations to the record and some

quotation marks omitted). At the conclusion of the hearing, the trial court

found that Wife was justified in leaving the marital residence based upon her

mental illness and ordered Husband to pay support. N.T., 12/11/2017, at

26. In its opinion, the trial court found as follows.

      [F]ollowing a verbal altercation with Husband[,] Wife left the
      marital residence[]. Wife suffers from, according to Husband
      and believed by the [trial court], a myriad of mental illnesses …
      [and one of her medications makes her act violently]. Because
      of Wife’s mental condition she is not welcomed by Husband to
      live in the marital residence. The [trial court] holds that Wife’s
      mental illness provided adequate legal cause for her leaving the
      marital home and that such cause was of no fault to Wife. Upon
      this determination, the [trial court] ordered Husband to
      financially support Wife.

Trial Court Opinion, 2/27/2018, at 4-5.

      To obtain spousal support, a petitioner has the burden of establishing

that the spouse’s conduct provided the petitioner with justification to leave

the marital home.     Brotzman-Smith v. Smith, 650 A.2d 471, 474 (Pa.

Super. 1994).    “A [petitioner] will be denied spousal support if he or she

voluntarily withdrew from the marital home without ‘adequate legal cause.’”

Id. (citations omitted). As this Court has explained,

      the phrase adequate legal cause for leaving is not subject to
      exact definition. It must be interpreted 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 over a


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      period of time suffers physical injury. The law must recognize
      this harm and not force the oppressed spouse to remain in the
      unhappy environment in order to be entitled to support. On the
      other hand, the law should not impose on a spouse the duty of
      support where his or her mate departs the marital residence
      maliciously or casually on a whim or caprice.

Clendenning v. Clendenning, 572 A.2d 18, 21 (Pa. Super. 1990). “The

party who voluntarily left the marital residence does not have to establish

adequate grounds for divorce in order to sustain a right to spousal support.

However, a mere allegation that cohabitation is unbearable, unsupported by

facts or reasons, is not sufficient.”   Brotzman-Smith, 650 A.2d at 474

(citations and quotation marks omitted).

      After careful review, we are unable to find, nor has Wife or the trial

court presented us with, any case law addressing whether a petitioner’s

mental illness, in and of itself, constitutes adequate legal cause to leave the

marital home. In a Berks County trial court case, the Honorable Elizabeth

Ehrlich wrote that the trial court “cannot require a husband to pay support

merely because wife may have been mentally ill and has chosen to live apart

from him, without any justification based on his behavior.”      Noll v. Noll,

Nos. 90-0342-00, 90-1977-00, 1994 WL 906704 (Berks Co. Pa. Com. Pl.

1994).7   In that case, the wife left the marital home due to a psychiatric


7 We recognize “that decisions of the Courts of Common Pleas are not
binding precedent for the appellate courts, but may be considered for their
persuasive authority.” Huber v. Etkin, 58 A.3d 772, 778 n.5 (Pa. Super.
2012).



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hospitalization and did not return to the home after her release from the

hospital.   Id.   The trial court held that where there is no evidence that a

petitioner’s mental illness prevented him or her from returning to the martial

home, and where a petitioner fails to show he or she did not return due to

the spouse’s conduct, the petitioner is not entitled to spousal support. Id.

      We find the reasoning of Judge Ehrlich to be persuasive, and we

conclude that Wife has not met her burden of establishing that Husband’s

conduct provided justification for Wife to leave the marital home.        See

Brotzman-Smith, 650 A.2d at 474.           While the record shows that Wife

suffers from mental illness, Wife has not presented any evidence to show

that she was subjected to “psychological oppression” or other conduct by

Husband to justify her departure.     See Clendenning, supra.      The record

demonstrates that Husband tried to help Wife with her mental illness; he

accompanied her to doctor’s appointments and took over the physical act of

paying bills, which had been Wife’s responsibility, when she told him she was

having a hard time doing so due to her mental illness. N.T., 12/11/2017, at

17-20, 22-23.      The record shows that Wife left “casually on a whim or

caprice,” after she and Husband had an argument on their way to church.8


8 The record indicates that, the day after Wife left, Husband sought her out
at the home of Wife’s father, and requested Wife to return to the martial
residence. N.T., 12/11/2017, at 17, 21. Further, Wife returned to the home
on five occasions to retrieve her belongings; Husband did not refuse her
entry on these visits, and in fact, the two of them talked about a trial
(Footnote Continued Next Page)



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Thus, Husband does not have a duty of support. See id. Accordingly, we

conclude that the trial court erred when it held that Wife’s mental illness, as

opposed to Husband’s behavior, demonstrated adequate legal reason to

leave the marital residence.

      In light of the foregoing, we hold the trial court abused its discretion in

misapplying the law when it granted Wife spousal support.         We therefore

reverse the trial court’s December 13, 2017 order.

      Order reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 4/16/2019


(Footnote Continued)   _______________________



separation and working on their marriage during these visits. Id. at 21. It
was not until after Wife threatened to accuse Husband falsely of raping her
that he told her he did not want her to return home unless she had someone
else with her. Id. at 24.



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