226 Pa. Super. 336 | Pa. Super. Ct. | 1973
Opinion by
This is an appeal from an order of the Court of Common Pleas of Clearfield County, remitting arrearages and increasing a support order.
The lower court entered an order of support dated April 17, 1957, which provided for the payment of $50 per month by the appellee, Philip Chila, for the support of a child and procedures for visitation. A hearing was held before the lower court on July 23, 1971, on a petition to review the 1957 order. As a result thereof, the lower court entered an order increasing the support
Appellant’s first claim is that the lower court abused its discretion in remitting arrearages from $4,-070 to $230. The lower court summarized the relevant testimony before it as follows: “Although Mrs. Chila complains of the rough and arrogant attitude of her former husband when he first attempted to exercise visitation rights, in the opinion of the court such a response was either initiated by her expressed objective showing of dislike towards him and/or by the continued refusal of she [sic] and her parents to reveal her location and the location of the child. His conduct was nothing more than a natural response to her defiance of the initial court order. When defendant finally did begin to recover from his extreme financial straights [sic] and attempted to give her $75 in cash, she refused it and also refused visitation with his son. (R-p. 15). During all this period Mr. Chila was in constant contact with the Clearfield County probation office and although the record does not show a direction to him not to continue with his payments, considering a man of his limited education having foremost in his mind Judge Pentz’s initial order which on its face coupled payment with visitation, the Clearfield County probation office clecurly indicated to him that they did not expect payment as they could not forwa/rd it to the proper person; (R-p.
We agree with appellant’s statement of the law that matters of support are separate and independent from problems of visitation and custody and that ordinarily, a support order must be paid regardless of whether the wife is wrongfully denying the father’s right to visitation. Commonwealth v. Mexal, 201 Pa. Superior Ct. 457 (1963); Commonwealth ex rel. Mickey v. Mickey, 220 Pa. Superior Ct. 39 (1971); Commonwealth ex rel. Crane v. Rosenberger, 212 Pa. Superior Ct. 144 (1968). Contrary to appellant’s argument, however, these cases are either distinguishable under their facts or they support rather than contradict the decision rendered by the lower court. Commonwealth ex rel. Mickey v. Mickey, supra, is not controlling in that its holding was primarily limited to our again accepted pronouncement that ordinarily support payments cannot be suspended due solely to a denial of visitation. Although in Mickey, supra, the wife had also moved from her original location, there is no indication that she repeatedly withheld information as to her new address from her husband as well as from the probation officials. Furthermore, in the instant case the husband was instructed by the probation authorities that he did not have to make further support payments. The case of Commonwealth ex rel. Crane v. Rosenberger, supra, lends support to the decision rendered by the court below. In Rosenberger, supra, support payments were likewise not paid based
In the present case, Mrs. Chila not only denied visitation rights but in addition denied the knowledge of her whereabouts and the whereabouts of the child both
Appellant’s second contention is that the support order, as increased by the lower court to $75 per month, was in itself inadequate. As to this issue, however, we are unable to render a proper evaluation or disposition due to the incomplete state of the record. We therefore remand to the lower court for further proceedings concerning the adequacy of its $75 per month order for the support of the 16-year-old child, taking into consideration the needs of the child, standard of living, net income and expenses of both parents, and other relevant factors.
Order of the court remitting arrearages is modified and, as modified, is affirmed and case remanded for further proceedings on the issue of adequacy of the support order.
The final order appealed from was entered on November 24, 1972.
In Rosenberger, there was a 10-year period of inaction by tbo wife to enforce tbe support order. In tbe present case, the period of inaction was even longer and although we do not find it necessary to base our decision on this fact alone we do emphasize that “the passage of an extended period of time may require a reanalysis of the rights and obligations of the respective parties and a remission of arrearages if warranted by the circumstances.” Commonwealth ex rel. Crane v. Rosenberger, supra. Also see Commonwealth v. Cieply, 162 Pa. Superior Ct. 346, 350 (1948).
We do find it necessary to make a slight modification of the arrearages based upon a minor error in computation as follows: at the end of 1961 there was a net arrearage of $480; the $150 deficiency during the year of 1968 was excusable due to a strike in the industry in which appellee worked; from this $480 remaining figure, we subtract an additional $75 which was paid over a three-month period prior to the last hearing on September 13, 1972. We therefore set the total figure for arrearages at $405 as of the hearing dated September 13, 1972. As to all other years beginning from the date of the original support order in 1957, we find after a careful review of the record that payment was either regularly met or excused due to unemployment, injury or illness, or for other reasons as set forth in this opinion.
For computation, in arriving at this adjusted figure, see Footnote 3, supra.
See generally 28 P.L.E. Parent and Child §53 (1960).