193 Pa. Super. 237 | Pa. Super. Ct. | 1960
Opinion by
On March 3, 1955, under an agreement between the parties, the court below entered an order of $50.00 a week against Josepli William Mullen for the support of his wife, Doris A. Mullen, and three children, Ronald, Joseph and William. On January 27, 1959 a written agreement was entered into by the parties reducing the support order to $30.00 per week for two children only, Joseph and William, effective January 27, 1959, Ronald having become 18 years of age. By the agreement it was further provided that Mr. Mullen should pay $10.00 per week toward the arrearages on the original order or $40.00 per week. This agreement was later sent to the court by mail and was received by the court
“Order vacated as to wife as of January 30, 1959, and order reduced effective January 30, 1959, to $20.00 per week for two children, Joseph and William.
“Order last stated and arrears are suspended pending appearance of ex-wife, Doris A. Swinburne, and production by her of children, Joseph and William, in this court in response to writ of habeas corpus issued August 12, 1959. Notify parties and counsel.”
The suspension of the order because of Mrs. Swinburne’s failure to appear and produce the children in response to a writ of habeas corpus which was never served was in error. This phase of the matter is directly ruled by the case of Com. ex rel. Firestone v. Firestone, 158 Pa. Superior Ct. 579, 45 A. 2d 923, in a unanimous opinion written by Judge, later Justice, Arnold, for this Court. The court below has asked us to overrule this case. We have given serious consideration to this request but are of the opinion that the Firestone opinion is based upon sound reasoning. The children should not be punished because of some conduct of the mother not affecting her fitness for custody.
In his opinion Judge Gilbert said: “Had the said new order of $20 per week for the two children not been suspended on the same day it was made, we could immediately have, under the authority of the Acts of 1957, infra, also entered an order requiring Mrs. Swinburne to produce the children in Philadelphia for periodic visitation with their father. We may also enter such an order whenever in the future the suspension may be lifted by us.”
The reduction of the order from $30.00 to $20.00 a week for the support of the two children was also in error. There was no petition to reduce the order before the court. The treatment of the agreement as a petition to readjust the order by the court below was in error. Upon the filing of a petition to reduce the order the court below could, of course, consider any changed circumstances and order accordingly. In such a proceeding it would be entirely proper for the court below to take into consideration the fact that the mother had remarried and moved to California with her husband, taking along the children to live in a new home, the expenses of which are either entirely or partly borne by the present husband.
Orders reversed and the record remanded to the court below for further proceedings not inconsistent with this opinion.