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WARGO v. WARGO (11/12/57)

November 12, 1957

WARGO
v.
WARGO, APPELLANT.



Appeal, No. 330, Oct. T., 1957, from order of Court of Common Pleas of Schuylkill County, May T., 1949, No. 136, in case of Albert W. Wargo v. Lucille M. Wargo. Order affirmed.

COUNSEL

Rocco C. Falvello, with him John Skweir, for appellant.

Daniel J. Boyle, with him John T. Pfeiffer, III, and John B. McGurl, for appellee.

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

Author: Wright

[ 184 Pa. Super. Page 588]

OPINION BY WRIGHT, J.

This is an appeal from an order of the court of common pleas of Schuylkill County striking from the record

[ 184 Pa. Super. Page 589]

    successive cumulative judgments for arrearages on an award of alimony pendente lite, each of which judgments was entered merely on an ex parte affidavit of default accompanied by a praecipe directed to the Prothonotary. We agree with the court below that this method of summary enforcement cannot be approved.

On March 21, 1949, Albert W. Wargo filed a complaint in divorce against his wife, Lucille M. Wargo, on the grounds of cruel and barbarous treatment and indignities to the person. The parties were married on October 2, 1920, and separated on April 5, 1948. There are three adult children. On July 25, 1949, Lucille was awarded alimony pendente lite in the sum of $50.00 per month. On March 20, 1950, a rule granted on Albert's petition for leave to discontinue was discharged. The judgments in question were entered on September 21, 1950, June 1, 1951, March 29, 1955, and February 29, 1956, in the amounts, respectively, of $300.00, $750.00, $3050.00, and $3600.00. On April 3, 1956, a rule was granted to show cause why the said judgments should not be stricken from the record. On July 22, 1957, this rule was made absolute. On August 2, 1957, the court below entered an order of supersedeas pending this appeal.

Section 46 of The Divorce Law of 1929, P.L. 1237, 23 P.S. 46,*fn1 provides that "the court may, upon petition, in proper cases, allow a wife reasonable alimony pendente lite". The purpose of alimony pendente lite is to enable the wife to maintain the principal action, and it differs somewhat in character from an order for support: Hanson v. Hanson, 177 Pa. Superior Ct. 384, 110 A.2d 750; Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa. Superior Ct. 527, 117 A.2d 793. See

[ 184 Pa. Super. Page 590]

    also Commonwealth ex rel. Kralik v. Kralik, 137 Pa. Superior Ct. 565, 9 A.2d 921. The existence of an order of the court of quarter sessions requiring a husband to pay support to his wife does not prevent the court of common pleas from awarding alimony pendente lite, Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967, nor is the refusal of the court of quarter sessions to enter an order of support a bar to a claim for alimony pendente lite in a subsequent divorce proceeding in the common pleas: Dicken v. Dicken, 56 D. & C. 531. Conversely, neither the existence nor vacation of an award of alimony pendente lite in the court of common pleas is a bar to the securing of an order for support in the court of quarter sessions: Commonwealth v. MacMaster, 88 Pa. ...


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