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COMMONWEALTH EX REL. HELLER v. YELLIN (12/29/53)

December 29, 1953

COMMONWEALTH EX REL. HELLER
v.
YELLIN



COUNSEL

Meyer W. Gordon, Marvin J. Apple, Pittsburgh, for appellant.

Harry S. Kalson, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Wright

[ 174 Pa. Super. Page 294]

WRIGHT, Judge.

To the marital union of Samuel and Betty Yellin, a daughter, Sharon Eileen, was born on June 13, 1945. The parents were divorced on February 20, 1947. The County Court of Allegheny County subsequently ordered the father to pay for the child's support the sum of $45 per month, the child to remain in the mother's custody within the court's jurisdiction, and the father to have certain visitation privileges. Both parents remarried. The father thereafter secured a divorce from his second wife, and continues to reside in Pittsburgh. The mother now resides with her second husband, Murray Heller, in New York City.

[ 174 Pa. Super. Page 295]

On September 15, 1949, in accordance with a written stipulation of the parties, that portion of the former order requiring monthly support payments was abrogated, the father to 'make and accumulate' in a savings account an educational fund for the child's use after her graduation from high school, the child to live with the mother in New York City, the father to have the right at his own expense to bring the child to Pittsburgh during the spring and summer school vacation periods and at Christmas. The mother was expressly not required to file a compliance bond. Each party was to support the child for such periods as he or she had custody. On October 16, 1952, the mother petitioned that the order of September 15, 1949 be cancelled, that an order of support be made, that she be given full custody with right of visitation limited to New York City, and that the educational fund be turned over to her. The lower court granted a rule to show cause, which rule was discharged after hearing. The mother has appealed.

The primary duty of support rests upon the father of a child, and his obligation is not abrogated by divorce. Commonwealth ex rel. Yeats v. Yeats, 168 Pa. Super. 550, 79 A.2d 793. Contracts between husband and wife, if fairly made, are generally considered binding as to them, although legally ineffective to oust the jurisdiction of the court in a support action. Commonwealth ex rel. Rossi v. Rossi, 161 Pa. Super. 86, 53 A.2d 887. A mother cannot, by contract, bargain away the right of her minor child to adequate support from the father, regardless of the validity of the agreement as between the parents themselves. Commonwealth v. Beavin, 168 Pa. Super. 73, 76 A.2d 653. In each case it is for the court to determine whether or not the terms of the agreement are reasonable, made without fraud or coercion, and have

[ 174 Pa. Super. Page 296]

    been carried out in good faith. Commonwealth ex rel. Rey v. Rey, 159 Pa. Super. 284, 48 A.2d 131.

The background of the present controversy is important in determining the fairness of the agreement and the good faith of the parties. The mother desired to have the child live with her and attend school in New York City. When a parent is permitted to take a child beyond the jurisdiction of the court, a compliance bond is generally required to insure that said parent, at his or her expense, will return the child periodically to the custody of the parent remaining in the Commonwealth. See Commonwealth ex rel. Balla v. Wreski, 165 Pa. Super. 6, 67 A.2d 595. In the case at bar, the mother obtained permission to remove the child from the court's jurisdiction without the requirement of a compliance bond, assuming full liability for the maintenance of the child while in her custody. The father agreed to establish a fund for the child's higher education, to pay the periodic transportation expenses, and to support the child while she was in his custody. This agreements was approved by the court and was embodied in the order of September 15, 1949. The mother's second husband acquiesced in the arrangement and was present in court when the order was made. It is significant that, in the mother's petition which culminated in the agreement and order, she averred that her second husband was 'willing and financially able to provide a good and suitable home for your petitioner and her daughter'.

The party seeking to modify a support order has the burden of showing, by competent evidence, such a change or changes in conditions as will justify modification. Commonwealth ex rel. Thompson v. Thompson, 171 Pa. Super. 49, 90 A.2d 360; Commonwealth ex rel. Mazon v. ...


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