Opinion
September 15, 1970.
November 13, 1970.
Parent and Child — Support of children — Duty of father nearly absolute — Disputes between parents — Judgment in favor of father and against wife for share of joint funds — Vacation of support order until payment of judgment — Vacation of order only as to wife, none as to children.
1. A child's right to support from his father is nearly absolute.
2. Disputes between parents are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of children.
3. An order of support provided for a specified sum periodically for the separate maintenance and support of the children of the parties and in the same amount for the wife. Subsequently, the husband obtained a judgment against the wife for one-half of the amount removed by the wife from joint savings accounts. The court below ordered that the entire support order be vacated until the husband defendant should receive credit for the amount of the judgment he had obtained against the wife.
The order of the court below vacating the support payments for the wife was affirmed. With respect to the support for the children, the order was vacated and that portion of the original support order providing for the separate maintenance and support of the children was reinstated.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 918, Oct. T., 1970, from order of Court of Common Pleas of Delaware County, Sept. T., 1968, No. F-14-2, in case of Commonwealth ex rel. Anna McCartney v. John M. McCartney. Order vacating support payments for wife affirmed; order with respect to payments for children vacated.
Nonsupport. Before CATANIA, J.
Order entered vacating prior order for support of relatrix, wife, and two children, and dismissing petition by relatrix for increase in amount of support. Relatrix, wife, appealed.
Nelson J. Sack, with him Pileggi, Desmond Sack, for appellant.
Charles P. Mayer, for appellee.
MONTGOMERY, J., filed a dissenting opinion, in which WATKINS, J., joined.
Argued September 15, 1970.
This is an appeal from an Order of the Court of Common Pleas of Delaware County vacating support orders in favor of appellant and her two children, aged three and eight. Appellant and her husband have been separated for over two years, with appellant having exclusive custody of the children. Shortly after the separation began, appellant withdrew the proceeds of three joint savings accounts — about $12,000. Subsequently, a support order was agreed to and approved by the court providing for $35.00 bi-weekly for the separate maintenance and support of the children, and the same amount for appellant. Approximately a year and a half later, appellee-husband obtained a judgment against appellant for one-half of the amount removed from the bank. Since this judgment had not been paid, the court below ordered the entire support order vacated until appellee should receive credit for the amount of the judgment he obtained against appellant.
It is true, as appellee argues, that if the situation of the parties changes "the lower court has the right to adjust [the support] order so as to accomplish equity and justice between the parties." Commonwealth ex rel. Stanley v. Stanley, 198 Pa. Super. 15, 18, 179 A.2d 667, 669 (1962). However, as Judge WATKINS noted in Commonwealth ex rel. Snively v. Snively, 206 Pa. Super. 278, 282, 212 A.2d 905, 907 (1965), the child's "right to support from the father is `well nigh absolute'". "A father of sufficient means must support his child, and it is not a defense that either the mother-custodian, or the child itself, has independent means." Commonwealth ex rel. Mallinger v. Mallinger, 197 Pa. Super. 34, 37, 175 A.2d 890, 891 (1961).
This Court has consistently held that Pennsylvania law is "clear in its direction that the conduct of the mother has no relevance in the determination of support for the children." Commonwealth ex rel. Byrne v. Byrne, 212 Pa. Super. 566, 569, 243 A.2d 196, 197 (1968) (allocatur denied). Agreements or disputes between parents are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of children. A father cannot avoid his duty of payment by reliance on substantial payments made in the past, Commonwealth ex rel. Silverman v. Silverman, 180 Pa. Super. 94, 117 A.2d 801 (1955), nor by reliance upon an agreement valid between the spouses themselves. Commonwealth ex rel. Rossi v. Rossi, 161 Pa. Super. 86, 53 A.2d 887 (1947).
We agree with the court below that appellant should not profit from her failure to fulfill her legal obligations, but this is not a sufficient reason to deprive the children of funds required for their separate maintenance and support. The effect of the order of the court below is to punish the children for appellant's recalcitrance in her refusal to pay the judgment obtained against her. Accordingly, the order below vacating the support payments for the wife is affirmed. With respect to the $35.00 bi-weekly for the children, the order of the court below is vacated and that portion of the support order providing for the separate maintenance and support of the children is reinstated.
I respectfully dissent.
When a husband or wife assumes full control of entirety property he or she holds it in trust for the needs of both husband and wife, Commonwealth ex rel. DiVirgilio v. DiVirgilio, 182 Pa. Super. 475, 127 A.2d 774 (1956). Thus, in this case, the appellant has in her possession $12,000 which, under the law, is to be held and dispensed by her for such purpose. On this theory she holds that sum of money earmarked for the payment of appellee's obligation to his children. The order as modified by the majority being payable to the appellant I would consider the appellee's obligation to his children prepaid. The mother periodically should apply the trust money in her hands for that purpose until it is exhausted.
WATKINS, J., joins in this dissenting opinion.