4 A.2d 217 | Pa. Super. Ct. | 1938
Argued December 14, 1938.
This appeal raises squarely, for the first time, the question whether the court of quarter sessions, — or the municipal court in Philadelphia County —, has the power to remit arrearages which have accrued under a valid order of support entered by that court in favor of a wife and children, or either of them, pursuant to proceedings under the Act of April 13, 1867, P.L. 78, 18 PS sec. 1251, and its supplements and amendments. While such action was collaterally involved in a number of cases which have come before us, — (See Com. ex rel. Reynolds v. Reynolds,
(1) The order of support, that the defendant "pay such sum as said court shall think reasonable and proper for the comfortable support and maintenance of the said wife, or children, or both," with power to commit such person "until he comply with such order, or give security, by one or more sureties, to the Commonwealth, and in such sum as the court shall direct, for the compliance therewith," is res judicata as to all *347
defenses which might have been raised at that time: Com. v.Richards,
(2) While the amount to be paid under the order is subject to change as future circumstances and events may warrant, (Com. exrel. Isaacs v. Isaacs, supra; Com. ex rel. Iacovella v.Iacovella, supra; Com. v. Jones,
If the court, which because of a change in circumstances has reduced an order of support, does not have the power to make it apply retroactively so as to affect the weekly or monthly payments which were due and unpaid under the original order at the date of the *348 amending order, it would seem to follow that it does not have the greater power to remit the arrearages, in whole or in part, which had accumulated under the original order.
(3) Some help may be had by examining the cases which deal with bonds given pursuant to the Act of 1867 as security for compliance by the defendant with the order of support. See Kiehlv. Com., 18 W.N.C. 505; Com. v. Mendelsohn,
(4) The case of Hooks v. Hooks,
So also the case of Com. ex rel. Morse v. Glasgow,
Nor does anything we have here said conflict with the right of the wife to agree to remit part of the arrearages due her under an agreement for support, where such remission is taken into consideration by the court in determining the weekly or monthly support thereafter payable to her under order of court, as was done in Com. ex rel. Simmler v. Simmler,
(5) It does not follow that because the court is *350
without power to remit arrearages due by a husband under its prior valid order, it is obliged to attach the person of the defendant or hold him in contempt for failure to pay the same to his wife. The reasonable and just cause which may lead a court to reduce an order of support may furnish just and reasonable ground for its refusal to attach a defendant's person for failure to pay arrears due. But that does not affect the right of the wife to have satisfaction for such arrears out of any money or property of the husband which she may be able to reach. And it is right that she should have it, for if he has the means with which to pay the arrears he should do so. We said in Com. ex rel.Berardino v. Berardino, supra, p. 535: "There is no hard and fast rule that arrears due under such an order must be paid before the order will be reduced or modified; though, in practice, it is sometimes made a prerequisite. See Com. ex rel. v. Ritter, supra, [
The assignments of error are sustained and the order of March 17, 1938, in so far as it remits the arrears due under the order of support, is reversed, at the costs of the appellee. *351