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COMMONWEALTH EX REL. DIVIRGILIO v. DIVIRGILIO (12/28/56)

December 28, 1956

COMMONWEALTH EX REL. DIVIRGILIO
v.
DIVIRGILIO, APPELLANT.



Appeal, No. 160, April T., 1956, from order of County Court of Allegheny County, 1954, No. C543, in case of Commonwealth of Pennsylvania ex rel. Mildred DiVirgilio v. George DiVirgilio. Order affirmed.

COUNSEL

Harvey E. Schauffler, Jr., for appellant.

Jack Palkovitz, with him David S. Palkovitz, and Robert Palkovitz, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Ervin

[ 182 Pa. Super. Page 476]

OPINION BY ERVIN, J.

This is an appeal from a modified order of the County Court of Allegheny County requiring George A. DiVirgilio to pay $90.00 per month for the support of his wife, Mildred DiVirgilio, and their two children, George and Gary, and directing Ekin Realty, Inc., the garnishee in attachment execution proceedings, to pay arrears in the amount of $360.00 by May 11, 1956, and pay the $90.00 on the current order on the 29th of each and every month. After appeal to this Court the court below granted supersedeas only with respect to the payment

[ 182 Pa. Super. Page 477]

    of arrearages and directed that payments of the current order of $90.00 continue.

The order from which this appeal was taken was the last in a series commencing with an order entered on March 30, 1954 providing for the payment of $80.00 per month. The record reveals the defendant was frequently in default in his payments resulting in the accumulation of arrearages. In order to insure regular payments of the support order the prosecutrix initiated attachment execution proceedings on May 6, 1955 naming Ekin Realty, Inc., as garnishee. Interrogatories were filed and the garnishee answered admitting it held an account with a balance of $2,492.38 in the names of George DiVirgilio and Mildred DiVirgilio representing the proceeds of the satisfaction of a mortgage held by them which had been paid off at the offices of Ekin Realty, Inc. As a result of these proceedings the court below entered judgment in favor of the prosecutrix and against the garnishee in the sum of $100.00 which was to be paid monthly to the probation officer until further order of the court or until the funds were exhausted. This judgment was subsequently suspended. However, various orders were directed against the funds in the garnishee's possession, some directing the garnishee to pay monthly sums to the wife for her support, others requiring the garnishee to make lump sum payments to satisfy judgments for arrearages. On January 31, 1956, after ordering the garnishee to pay $215.00 on account of arrearages, the court below provided that subsequent support payments were to be made out of defendant's earnings. On February 23, 1956 the defendant filed a petition seeking a division of the balance of the proceeds held by the garnishee. An answer was filed by the prosecutrix and a hearing was held on April 25, 1956. The

[ 182 Pa. Super. Page 478]

    order here involved was made on May 1, 1956. The record reveals that on May 9, 1956, subsequent to appeal to this Court, the court below denied defendant's petition requesting an equal division of the fund held by the garnishee.

Appellant contends the order of the court below was erroneous in providing that the monthly support payments of $90.00 should be paid each month from the fund in the garnishee's possession. Appellant argues that the fund in the garnishee's possession, owned by him and his wife as tenants by the entireties, should be divided between them equally and in support of his contention relies on the Act of June 11, 1913, P.L. 468, § 1, 48 PS § 133, which reads in pertinent part as follows: "Whenever hereafter an order shall be made against any husband by any court of quarter sessions, or other court of competent jurisdiction, for the comfortable support and maintenance of his wife or children, or both, ... it shall be lawful for such court to enforce compliance with said order, or in execution of said judgment, to issue its appropriate writ of execution against any real property owned by said husband and said wife by entireties ... or said court may, for the purpose aforesaid, issue a writ of attachment execution, attaching in the hands of any person or persons any rents, issues or profits of such estate. The proceeds of such sale, or of any attachment execution, after the satisfaction of such order or such judgment thereout, shall be divided between such husband and such ...


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