188 Pa. Super. 553 | Pa. Super. Ct. | 1959
Opinion by
This is an appeal from an order of the Municipal Court of Philadelphia, denying a petition for an increase in the support of Sophye K. Meth, the appellant wife.
The matter has a long history in the Municipal Court, where the original order of support was made on July 28, 1944, directing Lewis B. Meth, the appellee husband, to pay for the support of his wife, the sum of $10 per week. On July 9, 1946, the order Avas increased to $25 per week and on August 19, 1947, another petition for an increase was denied. Then on August 4, 1949, the order was reduced to $20 per week, upon which order the appellee is presently paying.
In 1952, the appellant filed a petition for support in Camden, New Jersey, where after extensive hearings the New Jersey Superior Court treating the petition as one for an increase in support, and giving full faith and credit to the Pennsylvania Court’s order, found that “The change of circumstances of the respective parties hereto is not such that Avould warrant any re
The present petition for an increase was brought on April 10, 1957 and the court below, finding no change in circumstances, dismissed it.
We agree with the court below that the appellant’s New Jersey action did not divest the Municipal Court of Philadelphia of jurisdiction. Com. ex rel. Milne v. Milne, 149 Pa. Superior Ct. 100, 26 A. 2d 207 (1942). “Where two tribunals have concurrent jurisdiction over any subject matter, the court in which the proceedings are first commenced has priority and no other court may limit the power of the first tribunal to dispose of the case.” Com. v. Moon, 174 Pa. Superior Ct. 334, 101 A. 2d 147 (1953). See also: Com. ex rel. Holzbaur v. Holzbaur, 185 Pa. Superior Ct. 343, 345, 138 A. 2d 268 (1958).
We have held that where a citizen of another state has obtained an order of support in that state against her husband, a citizen of Pennsylvania, that a petition for support brought in this state will be denied because ¡an entry of such an order de novo here, on top of the one in being in the other state, would place an unfair burden on the husband. Com. ex rel. Holzbaur v. Holzbaur, supra. This same unfair burden would have been present here had the New Jersey court determined that a change in circumstances warranted an additional order and the complicating incidents as to penalties and the enforcement processes would follow. However, this question is moot since the New Jersey court did dismiss the petition because there was no change in circumstances warranting modification.
No appeal was taken by this appellant from the order of 1949 nor from the order of the New Jersey court in 1955. A petition to modify an order of support is not a substitute for appeal, and cannot bring up for
The determination of the amount to be awarded for the support of a wife by her husband is largely within the discretion of the court below and the appellate court will not interfere unless a clear abuse of discretion appears. Com. ex rel. Spielvogel v. Spielvogel, 181 Pa. Superior Ct. 61, 121 A. 2d 886 (1956). The party seeking modification of a support order, here the appellant, has the burden of showing, by competent evidence, such a change or changes in conditions as will justify modification. Com. ex rel. Thompson v. Thompson, 171 Pa. Superior Ct. 49, 90 A. 2d 360 (1952).
“Orders of support are not final inasmuch as they may be increased, reduced, or vacated where the financial condition of the parties changes, or where other proper reasons are assigned, but the burden rests upon the one who so avers to show by competent evidence such permanent changes in conditions or circumstances as would justify a vacation or modification of the existing order.” Com. ex rel. Barnes v. Barnes, 151 Pa. Superior Ct 202, 203, 30 A. 2d 437 (1943).
Order affirmed.