Opinion
December 17, 1964.
March 18, 1965.
Husband and Wife — Support — Amount — Wife with minimal needs consisting of medical and hospitalization expenses — Payments under insurance policy of husband — Vacation of arrearages and reduction of support order in special circumstances — Support payments not to be held by court to create fund for wife.
In a support proceeding, in which it appeared that the court below dismissed defendant's petition to vacate the order and to remit arrearages, directed the defendant to pay a specified sum weekly on the arrearages, and further ordered that the payments be held in court pending further order, the money to be released when the wife left the mental hospital in which she was confined, and subsequently committed defendant for failure to comply with the order; and that at the time of the original order the wife, who had a mental problem, was an in-patient at a psychiatric hospital, and her needs were minimal, consisting mainly of medical and hospitalization expenses, which had been supplied through payments pursuant to the terms of an insurance policy of the husband and to a minor degree by some small payments by the husband without the aid of insurance; it was Held, in the special circumstances, that (a) the arrearages should be vacated and the support order reduced to $5 per week, which should be paid to the wife through the probation department; and (b) that the money should not be held by the court or the probation office to create a fund for the wife when she ceased to be an in-patient, but should be paid to her for her present needs.
Before ERVIN, WRIGHT, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., and WOODSIDE, J., absent).
Appeal, No. 305, Oct. T., 1964, from order of County Court of Philadelphia, July T., 1963, No. 2985, in case of Commonwealth ex rel. Karryl Joye Moore v. Charles Moore. Order affirmed as modified.
Support proceeding. Before PIEKARSKI, J.
Order entered directing that existing order remain in same amount, that defendant pay specified sum weekly on arrearages, and providing that payments be held in court pending further order. Defendant appealed.
Morris Passon, for appellant.
Philip Capone, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
WRIGHT, J., would affirm the order below on the opinion of Judge PIEKARSKI.
Argued December 17, 1964.
On September 25, 1963 the court below, after hearing, entered an order for support against the defendant-husband, in favor of the wife, in the amount of $28.00 per week. At that hearing the defendant was not represented by counsel. Subsequently, on December 27, 1963, the defendant was brought before the court for failure to comply with the order. At this hearing the defendant had counsel and was granted a continuance so the defendant could file a petition for a rehearing and vacation of the support order. A petition for a rehearing and to vacate the order and to remit arrearages was presented and refused without hearing on January 16, 1964. Another attachment issued and on March 4, 1964 the matter was again continued. On April 1, 1964 another petition for rehearing, to vacate the order and to remit the arrearages was filed and heard, together with an attachment for failure to comply with the order. As a result of the hearing the court below allowed the order to remain at $28.00 per week and ordered the defendant to pay $6.00 per week on the arrearages and further ordered: "Those payments will be held in court pending further Order. The reason for my doing that is that this woman under this Order should have a right to know that there is some money for her ready and available when she leaves the hospital. And she can't be expected to leave that hospital in the same dress that she wore when she went into that hospital and have no other clothes and no other place to go. We would then arrange to release it forthwith. But we cannot treat this attachment as something that is merely a continuance. I will require that thirty-four dollars per week be paid into this court, which is six dollars on account of the arrears. And I shall make this determination at this time, in view of the fact that only fifty dollars has been paid according to our records on this Order; if he misses three weeks, he will be committed to the House of Correction for thirty days." On April 7, 1964 an appeal was taken from the aforesaid order.
On May 26, 1964 the appellant filed a petition in the court below to amend the order and vacate arrears. This Court, upon petition, remitted the record to the court below for the purpose of considering the petition to amend the order and vacate arrearages and, after consideration and disposition, to return the same to this Court for final disposition on appeal.
Hearings were held below on August 4, 1964 and August 18, 1964 and the petition to amend and vacate arrearages was dismissed on September 9, 1964. The record has been returned to this Court. Subsequently the appellant was committed to jail for failure to comply with the order and this Court allowed a supersedeas as to the commitment for contempt.
After reviewing the entire record, we find that the defendant and his wife were married in Denton, Maryland, in 1955. They lived together in Dover, Delaware, and separated 21 months before the first hearing in September 1963. One child, a son, was born to the marriage and the child resides with the husband. The defendant is employed by the Army Engineer Corps, Philadelphia District, and has a gross pay of $8,500.00 per year. He is apparently a graduate of Hampton Institute in architectural engineering. The wife is a college graduate. However, she has had a mental problem and was, prior to the first hearing on September 25, 1963, receiving medical and psychiatric treatment by doctors in and out of the hospital. On September 25, 1963 she was apparently an out-patient. Her needs at that time were not great as she was living with her aunt in Philadelphia. The record is clear that medical, hospital and drug bills were being paid through her husband's insurance. At the time of the hearing to amend the order and remit the arrearages, the testimony is clear that the wife was an in-patient at the Eastern Pennsylvania Psychiatric Institute and her needs were minimal.
Under the particular facts of this case the needs of the wife, which consist mainly of medical and hospitalization expenses, have been supplied through payments pursuant to the terms of an insurance policy of the husband and to a minor degree by some small payments by the husband without the aid of insurance. The need of the wife for money for her own use has decreased since her confinement as an in-patient on January 16, 1964. Therefore, under the special circumstances of this case the arrearages are vacated and the support order is reduced to $5.00 per week, which shall be paid to the wife through the Probation Department. The money shall not be held by the court or the Probation Office to create a fund for the wife when she ceases to be an in-patient but shall be paid to her for her present needs.
We have affirmed support orders directing the father to pay future medical expenses of his children when those expenses are incurred: Com. ex rel. Warner v. Warner, 194 Pa. Super. 496, 168 A.2d 755; Com. ex rel. Warner v. Warner, 198 Pa. Super. 124, 130, 133, 181 A.2d 888. We have refused, however, to affirm an order for a child which the court made higher than normal in order to permit the mother to accumulate funds for the child's future medical expenses: Com. ex rel. Pagel v. Pagel, 175 Pa. Super. 32, 100 A.2d 117. See also Com. ex rel. Gutzeit v. Gutzeit, 200 Pa. Super. 401, 189 A.2d 324.
If and when the wife is discharged from the hospital, changed conditions will probably arise, and a review of the order could then be had by the court below.
The order of the court below is affirmed as modified herein.
WRIGHT, J., would affirm the order below on the opinion of Judge PIEKARSKI.