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December 29, 1953



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. Mazon, 163 Pa. Super. 502, 63 A.2d 112; Commonwealth ex rel. Orlowitz v.

[ 174 Pa. Super. Page 297]

    illnesses were not unusual and were properly treated. A dentist testified as to the dental care given the child. The uncontradicted testimony of the father was that he had a proper home for Sharon Eileen with his mother and sister. Furthermore it was shown that appellee's difficulty with his second wife and his father's last illness both occurred in the summer of 1952. These conditions have now been eliminated. There is ample evidence in the record to show that the father has been a particularly devoted parent.

An infant is the ward of the State and at any time during minority the court will make such disposition of the child as the circumstances of the case demand. Commonwealth ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300. It requires the clearest kind of evidence to justify the termination of the right of either parent to custody or visitation. Leonard v. Leonard, supra; Commonwealth ex rel. Manning v. Manning, 89 Pa. Super. 301; Commonwealth ex rel. Bachman v. Bradley, 171 Pa. Super. 587, 91 A.2d 379. On an appeal in a custody case, we must consider the testimony and make such an order upon the merits as to right and justice shall belong. Act of 1917, P.L. 817, 12 P.S. ยง 1874. However, weight is to be given to the fact that the parties are likely to be known to the lower court, and that it has had a better opportunity to pass upon their ability and character than we have. Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437; Commonwealth ex rel. Knouse v. Knouse, 146 Pa. Super. 396, 22 A.2d 618.

So far as the educational fund is concerned, it is being supervised temporarily by appellee's counsel. The court below was satisfied with this arrangement and we see no reason to disturb it. In his opinion President Judge Lencher very properly stated: 'As must

[ 174 Pa. Super. Page 299]

    invariably prevail in cases of this kind, the order we make will be prospective, concerned with Sharon's best interests in the future, as well as in the immediate present; we will keep the case open for development. * * * We will direct our probation office to give the case continued watch and study'. We find no reason to interfere with his disposition of the controversy.

Order affirmed.


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