Yale L. Schekter and Robert Grey Bushong, Philadelphia, for appellant.
Jacoby & Maxmin, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 551]
This is an appeal by a father from an order directing him to pay $35 per week for the support of his minor child under the Act of June 24, 1939, P.L. 872, § 733, 18 P.S. § 4733.
Catherine Yeats, relator, obtained a divorce from appellant on November 5, 1942. In June 1950 she instituted these proceedings for the support of their minor daughter, Nellie, now thirteen years of age. At the time of divorce mother and father entered into a written agreement whereby the child was to remain with the mother who agreed to maintain, clothe and educate her but that the child's best interests would at all times 'be the determining factor in any decision as to her custody and maintenance.'
Since the divorce, relator has had sole custody of the child and supported her without financial assistance
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from appellant. The child was reared in her grandfather's home until his demise in 1947. The grandfather was head of a large and prosperous shoe business and the child enjoyed all the advantages and niceties of life including a private school education, summer camp, music, dancing lessons, and the like. His death required relator to institute economical measures. She sold the $27,000 family home and purchased a more modest residence. She has continued the employment of a housekeeper, and secured employment from which she receives $140 a month.*fn1 She also receives an income of $50 to $65 a month from a $25,000 trust fund created by her father, with the right to withdraw up to $1,000 a year of the principal. Both she and the child are beneficiaries under insurance policies issued to the grandfather from which they each derive monthly income of $125. When the grandfather's estate has been settled relator and her daughter will undoubtedly receive substantial awards with which we are not now concerned, as we are interested only in the parties' present financial condition.
The primary duty of support rests upon the father, and his obligation is not abrogated by divorce. Com. ex rel. Bucciarelli v. Bucciarelli, 162 Pa. Super. 582, 60 A.2d 554. It is immaterial that relator has heretofore refrained from requesting support from appellant. Com. ex rel. Kielar v. Kielar, 160 Pa. Super. 435, 51 A.2d 514. The pre-divorce agreement does not relieve appellant of his liability. As Judge Hirt so aptly stated in Com. ex rel. Rossi v. Rossi, 161 Pa. Super. 86, 88, 53 A.2d 887, 888: 'Contracts between husband and wife, if fairly made, are generally considered binding as to them * * *. This support proceeding
[ 168 Pa. Super. Page 553]
is not an action brought to enforce the performance of a contractual obligation. It is a quasi-criminal proceeding brought by the minor child in the name of the Commonwealth, though at the relation or on the information, of the child's mother. The relationship of parent and child is a status -- not a property right (Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286, 50 A.2d 713), and a mother cannot by contract, bargain away the right of her minor child to adequate support, to the relief of the father, irrespective of the legality of the agreement ...