222 Pa. Super. 518 | Pa. | 1972
Concurrence Opinion
Concurring Opinion by
This appeal involves the question of whether a court may deny a hearing on a petition to reduce an order of support where the petitioner is in arrears of the support order. The lower court and the majority of this Court have answered this question in the affirmative. I concur in the result reached by the majority. I must, however, add these remarks to emphasize my disapproval of the existing case law of this Commonwealth, which we are bound to follow, but which I believe is contrary to emerging trends and against public policy.
Appellant, Louis Paul, and appellee, Euth Paul, were married on January 21, 1949, and are the parents
From this order the appellant took an appeal to our Court, which order we affirmed in a per curiam opinion filed February 10, 1972.
Appellant thereafter filed a Petition to Eeduce the Order of Support, stating that he should be granted relief since one of his sons is “18 years of age, is no longer enrolled in school and is presently working for petitioner where he earns sufficient income to maintain himself.” On March 1,1972, the lower court, finding appellant to be in contempt of both orders, refused to hear the matter of a reduction in the support order until such time that the arrears would be paid.
In Goodwin, supra, our Supreme Court was faced with a situation similar to the instant case. There, the Court upheld the lower court’s denial of a hearing to reduce a support order until such time as appellant would purge himself of contempt. It should be noted, however, that the very information which formed the basis of appellant’s petition for reduction, in Goodwin, had been in possession of appellant’s counsel prior to the entry of the original order, and could have been presented at that time.
Unlike Goodwin, the instant case does not present a situation where appellant could have challenged the order of support at the time it was originally entered. At that time, appellant’s son was a minor. Appellant’s
While the instant case may be distinguishable from Goodwin, we must consider whether appellant can be denied a hearing on a petition to reduce an order of support, when he is in arrears. Other jurisdictions have held that a hearing is necessary on a petition for the reduction of a support order to determine the present needs and financial conditions of the parties, notwithstanding the existence of arrearages. Peters v. Peters, 14 A. D. 2d 778, 219 N.Y.S. 2d 906 (1961) ; Knight v. Knight, 341 S.W. 2d 59 (1960); Smith v. Smith, 118 O. A. 276, 194 N.E. 2d 168 (1963); Dougherty v. Dougherty, 76 S. O. 318, 77 N.W. 2d 845 (1956). These courts have recognized that a court should hear a petition to reduce an order of support despite the existence of arrearages, since prior defaults, even to the extent of being contemptuous, and a change of circumstances are independent of each other.
I agree with this view. Certainly, a petitioner who discovers that his wife has committed adultery should not be barred from producing evidence that would justify a revocation of a support order, which otherwise could continue for the remainder of her life. See Commonwealth v. Levitz, 189 Pa. Superior Ct. 438, 150 A. 2d 581 (1959). The existence or nonexistence of arrearages should in no way affect the right of the petitioner to present his case. The controlling question should be whether the petitioner can produce such evidence to warrant a revision in the original order of support. The punishment for disobeying a court order is a matter for separate and independent consideration. Cf. Commonwealth ex rel. Beemer v. Beemer, supra (dissenting opinion by Judge Woodside) .
I believe that the spurious distinction now existing as a result of this judicially-created rule of law cuts
For the reasons stated, I concur in the result of the majority.
Commonwealth ex rel. Paul v. Paul, 221 Pa. Superior Ct. 726, 288 A. 2d 538 (1972).
In the opinion accompanying the lower court order, Judge Schwartz stated: “The Court based its order denying petitioner a hearing on his petition . . . upon two factors taken in combination: the petitioner failed to allege facts to sustain a finding that continuation of the present order would work hardship upon him, and the court, being fully aware of petitioner’s economic posture from prior hearings, determined that the tremendous arrearage
The order of the Court read as follows: “The Court refuses a hearing in this matter. All the arrears must be paid before the Court will consider another hearing.”
It is to be emphasized that in no way do I reward the appellant for his contemptuous conduct The lower court has full power to impose whatever sanctions it may deem necessary to compel appellant to obey the orders of the court
Lead Opinion
Opinion
Order affirmed.