183 Pa. Super. 277 | Pa. Super. Ct. | 1957
Opinion by
This is an appeal from the refusal of the court below to reduce a support order. The matter originated upon the petition of Phyllis H. Xreiner, under the Uniform Support of Dependents Law of the State of New York, requesting that her former husband, Adam M. Scheidt, be ordered to support their two minor children, Sandra E. Scheidt, aged 13, and Michael M. Scheidt, aged 12. The proceeding was transmitted to the Court of Quarter Sessions of Delaware County, Pennsylvania, the domicile of the father, for disposition under the Uniform Enforcement of Support Law.
“The primary duty of support rests upon the father of a child, and his obligation is not abrogated by divorce . . . The party seeking to modify a support order has the burden of showing, by competent evidence, such a change or changes in conditions as will justify modification ... In a case of this nature, we do not interfere with the determination of the court below unless there is a clear abuse of discretion”: Commonwealth ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 101 A. 2d 452.
We are not persuaded that the hearing judge can be charged with error in failing to attach great weight to the voluntary payments made by the grandfather. There is no guarantee that these contributions will be continued. They are merely attendant circumstances which do not militate against continuance of the order on the father. See Commonwealth ex rel. Groff v. Groff, 173 Pa. Superior Ct. 535, 98 A. 2d 449; Commonwealth ex rel. Prelec v. Prelec, 179 Pa. Superior Ct. 422, 115 A. 2d 847.
So far as the mother’s appearance in Pennsylvania is concerned, the record discloses that she was sworn and examined in the State of New York under the Uniform Support of Dependents Law. The purpose of this statute in enforcing the duty to support is the same as that of the Uniform Enforcement of Support Law: Commonwealth v. Shaffer, 175 Pa. Superior Ct. 100, 103 A. 2d 430. In the words of Judge Hirt in the Shaffer case, “since the present proceeding in the quarter sessions is only quasi-criminal in nature the respondent will not be entitled to be confronted by the wife and her witnesses at the hearing on the merits of this case”. In any event, we have repeatedly held that a petition to vacate or modify an order of support is not a substitute for an appeal, and cannot bring up for review matters adjudicated in making the first or
Appellant’s principal contention is based upon the purported reduction in his income during the period between the first and second hearings. In this connection Judge Bretherick observed that appellant “was not, in our opinion, a credible witness”. While a full disclosure of appellant’s assets was purportedly made at the first hearing, the testimony at the second hearing showed an estate considerably in excess of that presented for the court’s original consideration. Appellant complains that the amount of his capital estate should not be considered. However, in a support proceeding, the court is not restricted to the husband’s actual earning's, but is entitled also to consider his earning poAver, Commonwealth v. Williams, 178 Pa. Superior Ct. 313, 116 A. 2d 297, and the nature and extent of his property and other financial resources: Commonwealth ex rel. Davidoff v. Davidoff, 178 Pa. Superior Ct. 549, 115 A. 2d 892. This is particularly true where there may be some question as to the husband’s good faith: Commonwealth ex rel. Spielvogel v. Spielvogel, 181 Pa. Superior Ct. 61, 121 A. 2d 886.
Although less than a year elapsed between the two hearings, appellant claimed large business losses during that period. The court below chose to regard this circumstance as a temporary recession in the automobile business, indeed no testimony was offered to show that the loss of income Avould be permanent. A tern
The order of the court below is affirmed.
Act of May 10, 1951, P. L. 279, 62 PS 2043.1 et se<B
Act Of June 19, 1939, P. L. 440, 17 PS 263.