Appeal, No. 286, Oct. T., 1957, from order of Court of Quarter Sessions of Lebanon County, Sept. T., 1952, No. 85, in case of Commonwealth ex rel. Evelyn Bortz v. Theodore Norris. Order affirmed.
James W. Evans, for appellant.
Allen H. Krause, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 595]
Theodore and Evelyn Norris were married in March, 1946, and divorced in September, 1952. Evelyn's subsequent second marriage also terminated in a divorce. Theodore did not remarry. The parties had two children, a boy, Evlin, born December 12, 1946, and a girl Dorea, born April 10, 1948. On August 13, 1952, the court of quarter sessions of Lebanon County made an order against Theodore in the amount of $12.00 per week for the support of the two children, who were then, and have since remained, in Evelyn's custody. This order was, on April 1, 1954, increased to $17.50 per week. On August 17, 1955, Theodore and Evelyn executed a written agreement set forth in the footnote,*fn1 which provided for a lump sum payment by Theodore in full settlement of the support charges, and for the withdrawal of the court order. The consideration mentioned
[ 184 Pa. Super. Page 596]
in said agreement was paid by Theodore and accepted by Evelyn. On November 26, 1956, upon Evelyn's petition for an attachment, Theodore was summoned to appear on December 6, 1956, "to show cause why the order for support has not been complied with". Following the taking of testimony, the court below ordered Theodore to continue payments at the rate of $17.50 per week from December 6, 1956, but refused to hold him liable for any arrearages prior to that date. Evelyn has appealed.*fn2
Appellant's present counsel contends (1) that "an agreement between parents purporting to release the father from all liability for future support of their minor children" is invalid; (2) that the lower court abused its discretion "by disallowing accumulated arrearages under the existing court order".
In Commonwealth ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 101 A.2d 452, we refused to disturb the lower court's approval of an agreement by a mother wherein she assumed full liability for the maintenance of a child while it was in her custody. Although the factual situation differs somewhat, our statement in the Yellin opinion of the controlling legal principles is equally applicable to the case at bar, as follows:
"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. Superior Ct. 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 ...