90 Pa. Super. 68 | Pa. Super. Ct. | 1926
Argued October 21, 1926. This is a proceeding for support brought by three minor grandchildren, acting by their mother and next friend, against their paternal grandfather. The grounds alleged in the petition as justifying an order of support are: That they are poor and unable to work; that their father is unable to sustain them; that they have no estates of their own, nor has their mother any estate of her own, and they are dependent; and that their grandfather, the defendant, has ample means to support them but will not. The lower court ordered the defendant to pay the sum of two hundred and fifty dollars a month for his grandchildren's support. He appealed to this court.
It is unfortunate that the court below did not heed the admonition of the learned counsel for the appellees in opening his testimony, to wit, that the case was entirely independent of any other proceedings had before the court. Some confusion and consequent error would have been avoided had it done so. The case did not form any part of the prior proceedings for support brought by the mother on behalf of herself *70 and children against her husband and their father for support. They were entirely separate, and should have been separately docketed to distinct numbers and terms. If the record in the prior proceeding or any part of it was deemed relevant in this case it should have been offered and admitted in evidence just as any other testimony.
The evidence in the case establishes that the children are too young to work; that neither they nor their mother have any separate estates of their own; and that the paternal grandfather has ample property to comply with the order. It fails, however, to establish the important averment in the petition, that their father is unable to support them.
The record discloses that over two years before the present action was begun, Frederica L. Milne filed her petition in the Municipal Court setting forth that her husband, Caleb J. Milne, 3d, had separated himself from his wife and three children aforesaid, and praying the court to make an order of support against him for herself and children; and that pursuant thereto the court ordered him to pay his wife, for the support of herself and children, the sum of two hundred dollars per month, and leave their common domicile. That subsequently on petition of the husband, the order was modified and reduced to one hundred and fifty dollars per month. It was also shown that the husband had no real estate or property of his own but was earning a salary of $3,000 a year, out of which he was paying the amount ordered to be paid as aforesaid for the support of his wife and children.
Such being the case, the averment that he was unable to maintain his children is not sustained by the proof, which shows that out of his earnings he is paying for the support of his wife and children an amount adjudged by the court to be reasonably adequate. While *71
it is proper in orders for support of wife or children that the station in life of the parties should be considered, it must be remembered that it is the station of the husband and father which governs, not that of his parents or his wife's parents. This principle was very clearly and concisely stated by our Brother TREXLER in Com. v. Bowie,
But appellees rely on the fact that the lower court, coincident with its order on the grandfather appellant amended its order against the father by directing that the $150 per month to be paid by him should be for the support of the wife alone and that said order be *72
vacated as to the children. This was a result of the unfortunate and improper attempt to commingle the two proceedings referred to above. Application for the amendment of that prior order was made by counsel for these appellees during a hearing on the proceeding against this appellant, (Caleb J. Milne, Jr.) to which the husband (Caleb J. Milne, 3d) was not a party, nor present in court, nor represented by counsel, and in which he had not appeared in any capacity. No rule was served upon him nor notice given him of such application, nor chance nor opportunity afforded him to be heard in the matter; nor is there anything in the record to show that the amended order was ever served upon him or notice given him of its changed effect. It was an attempt to enter an inappropriate order in one proceeding and make it effective in an entirely different proceeding, without notice or warning to the party affected thereby, and may be treated as a nullity. Furthermore, the amended order was, in the circumstances shown in this case and found by the lower court to exist, beyond the power of that court legally to make. It purported to award the wife for her support three-fifths of her husband's annual income and earnings, as fixed by the court at $3,000. The Act of February 26, 1817, 6 Sm. L. 405, permits the court to allow a wife who has obtained a decree of divorce from bed and board, by reason of his abandonment, cruel and barbarous treatment, etc., "such alimony as the husband's circumstances will admit of, so as the same do not exceed one-third of his estate or of his occupation and labor." See McClurg's App.,
The jurisdiction committed to the Municipal Court of Philadelphia County in these proceedings by the Act of July 12, 1913, P.L. 711 and its amendments, including the Act of July 17, 1917, P.L. 1015, does not differ in any material respects from that conferred on the Court of Quarter Sessions in the rest of the Commonwealth. The proceeding is essentially one under the poor laws for the relief of poor persons, including children, unable to work and maintain themselves. While it is not essential that they should be legally declared to be paupers: Phila. v. Hays,
We are of opinion that in the circumstances here present the court below was without authority to make the order appealed from and to that extent sustain the third and sixth assignments of error. The order is reversed. *75