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SMALL v. SMALL (01/21/58)

January 21, 1958

SMALL
v.
SMALL, APPELLANT.



Appeal, No. 21, March T., 1958, from order of Court of Common Pleas of York County, April T., 1954, No. 628, in case of Irene J. Small, now Irene Van Name v. John H. Small. Order affirmed.

COUNSEL

Spencer R. Liverant, with him Arthur Markowitz, Lewis P. Sterling, James E. Buckingham, and Markowitz, Liverant, Rahauser & Kagen, for appellant.

Emanuel A. Cassimatis, with him Henry B. Leader, McClean Stock, and Stock and Leader, for appellee.

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

Author: Gunther

[ 185 Pa. Super. Page 469]

OPINION BY GUNTHER, J.

On May 12, 1953, John Small, appellant, and Irene J. Small, now Irene Van Name, appellee, signed two documents purporting to settle their domestic difficulties and the situation of their child, Margaret Small.

[ 185 Pa. Super. Page 470]

One document provided that appellant pay all of the child's education and appellee support the child for a period of eleven years; the appellee was also to have custody and the appellant to have right of visitation. The other document provided that appellant pay appellee the sum of $500 per month for a period of eleven years. The right of visitation enabled the father to see the child at appellee's residence on Springettsbury Avenue, York, Pennsylvania. In November, 1953, the child was taken to Long Island with the father's permission. On December 12, 1953, the mother remarried and took the child from Utited States to Hong Kong. The father requested the return of his daughter to the United Stated but without success.

On May 20, 1954, appellee entered judgment against appellant for the sum of $3,335.50 under a warrant of attorney contained in one of the documents. This document provided for the payment by John H. Small in the sum of $500 per month for eleven years commencing on the date upon which a final decree of divorce was entered. Two documents were written for the reason that John H. Small desired to be in position where he could assert certain tax benefits on his income tax return.

Appellant contends that the removal of his daughter from the jurisdiction violated the agreement and justified an opening of the judgment. The court below dismissed the rule to show cause why judgment should not be opened.

Did appellant and appellee intend their two written documents to be one contract or two separate and independent contracts? The court below came to the conclusion that two separate ...


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