Opinion
November 18, 1975.
March 29, 1976.
Husband and Wife — Support for wife — Husband ordered to pay support into a court fund rather than to wife pending outcome of divorce action — Order providing for return of support payments to husband if husband granted a divorce — Error of court in entering order — Restitution of support payments prohibited.
1. In this case, a husband was ordered to pay support to his wife, and the court ordered the money to be paid to the clerk of courts to be held in an impoundage fund until the merits of a pending divorce suit between the husband and wife would finally be determined. The order further provided that if the divorce was denied, the money would be paid to the wife, and if the husband was granted the divorce, he would have the money returned to him. It was Held that the court below erred in entering the order.
2. Restitution of support paid by a husband is prohibited.
3. There is no statutory authority permitting the procedure of creating an escrow account in support cases.
4. When, at a support hearing, the husband contests the obligation to pay support on the grounds that his spouse is engaged in conduct which entitles him to a divorce, the lower court must determine at the support hearing whether the husband has made out a prima facie case.
5. If a prima facie case is made out, no support should be ordered.
6. It was Held in this case, since there were no circumstances mitigating the husband's obligation to support his wife, that he should have been ordered to pay arrearages and make monthly payments to his wife until such time as the divorce was decreed.
Before WATKINS, P.J., HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ. (JACOBS, J., absent).
Appeal, No. 591, April T., 1975, from order of Court of Common Pleas of Washington County, July T., 1971, No. 225, in case of Joseph A. Savo v. Sylvia R. Savo. Order of May 5, 1975 reversed and case remanded.
Nonsupport. Before SWEET, P.J.
Order entered directing payment into court of arrearages and continuing order for support pending final decision in action for divorce. Wife appealed.
Milton D. Rosenberg, with him W. Bryan Pizzi, II, and Bloom, Bloom, Rosenberg Bloom, for appellant.
Sanford S. Finder, submitted a brief for appellee.
HOFFMAN and SPAETH, JJ., concurred in the result.
VAN der VOORT, J., dissented.
JACOBS, J., did not participate in the consideration or decision of this case.
Argued November 18, 1975.
This is an appeal from an order of support which directed the appellee-husband to pay the monthly allotments and arrearages into a court fund, rather than to appellant-wife, pending the outcome of a suit in divorce. The lower court's order impounding the funds until the merits of the divorce suit were determined was clearly erroneous.
The relevant facts are that on November 29, 1971, an order for alimony pendente lite was entered. On November 21, 1972, that order was terminated, and in its place, the lower court entered an order of support. Appellee paid the support payments regularly until June of 1974. In January of 1975, appellant filed a rule to show cause why her husband should not be held in contempt for failure to pay support. As a result of that rule, the lower court held a hearing, following which the amount of arrearages was assessed. In addition, the court ordered Mr. Savo to continue making monthly support payments. However, rather than ordering Mr. Savo to pay the arrearages and monthly support payments to his wife, the court ordered the money to be paid to the Clerk of Courts of Washington County, to be held in the impoundage fund until the merits of a pending divorce suit would be finally determined. Under the court's order, if the divorce was denied, the money would be paid to his wife. If the husband was granted the divorce, he would have the money returned to him.
The amount of support was decreased from $225 to $192 per month on December 12, 1974.
Such a procedure is not to be sanctioned. The duty to support one's dependents either exists at the time the complaint for support is filed, or it does not. It cannot be held in limbo pending the outcome of another action. To permit support payments to be returned to the plaintiff-husband, who is the successful party in divorce, has two negative effects: (1) it creates a restitution of the support monies in violation of this court's opinion in Marra v. Marra, 178 Pa. Super. 102, 113 A.2d 320, aff'd, 383 Pa. 227, 118 A.2d 204 (1955); and (2) it encourages those seeking divorces not to fulfill their obligations of support pending the divorce decree. Moreover, there is no statutory authority which permits the procedure of creating an escrow account in support cases.
It should be noted that this court has previously determined that the obligation of support continues, even in those cases wherein the plaintiff-husband is granted the divorce, until the decree is finalized at the termination of all appeals. Ponthus v. Ponthus, 70 Pa. Super. 39 (1918).
We hold that when, at a support hearing, the husband contests the obligation to pay support on the grounds that his spouse has engaged in conduct which entitles him to a divorce, as in this case, the lower court must determine at the support hearing whether the husband has made out a prima facie case. If so, no support should be ordered. If not, as in this case, the obligation to pay support must be determined, the amount assessed, and the payments begun. See the Act of Dec. 6, 1972, P.L. 1365, No. 291, §§ 24, 30, 31 (62 P. S. § 2043-26, 2043-32, 2043-33). In the instant case, the lower court failed to find that the circumstances mitigated Mr. Savo's obligation to support his wife. Therefore, he should have been ordered to pay the arrearages and his monthly payments to his wife until such time as the divorce was decreed.
We, therefore, reverse the order of May 5, 1975, and remand the case with directions to pay the funds in the impoundage account, including all arrearages and monthly support payments, to Mrs. Savo until such time as the decree in divorce is made final, dealt with in a companion appeal, Savo v. Savo, 238 Pa. Super. 725, 356 A.2d 807 (1976).
HOFFMAN and SPAETH, JJ., concur in the result.
VAN der VOORT, J., dissents.
JACOBS, J., did not participate in the consideration or decision of this case.