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WARGO v. WARGO (09/16/59)

September 16, 1959

WARGO, APPELLANT,
v.
WARGO



Appeal, No. 214, Oct. T., 1959, from judgment of Court of Common Pleas of Schuylkill County, May T., 1949, No. 136, in case of Albert W. Wargo v. Lucille M. Wargo. Judgment vacated.

COUNSEL

D. J. Boyle, with him John T. Pfeiffer, III, for appellant.

Rocco C. Falvello, with him John Skwier, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Wright

[ 190 Pa. Super. Page 356]

OPINION BY WRIGHT, J.

We are concerned on this appeal with the question whether the Act of May 10, 1921, P.L. 434, 48 P.S. 136, confers upon the court of common pleas the right to

[ 190 Pa. Super. Page 357]

    enter judgment for arrearages on an order for the payment of alimony pendente lite in a divorce action. When the case was here before, we affirmed an order of the court below striking from the record successive cumulative judgments entered merely on ex parte affidavits of default. See Wargo v. Wargo, 184 Pa. Superior Ct. 587, 136 A.2d 163. The wife thereafter petitioned for a rule to show cause why judgment should not be entered, and the husband moved to discharge the rule. The court below made the rule absolute, and directed the entry of judgment in the sum of $5000.00. The husband has appealed.

The parties were married on October 2, 1920, and separated on April 5, 1948. On March 21, 1949, the husband filed a complaint in divorce on the grounds of cruel and barbarous treatment and indignities to the person. On April 18, 1949, the wife petitioned for alimony pendente lite alleging that she would "be put to considerable expense in the preparation of her case", and was "without funds to properly pay for the divorce proceedings in defending herself". On July 25, 1949, the court below awarded alimony pendente lite in the sum of $50.00 per month. On August 8, 1949, the husband filed a petition to discontinue the divorce action, but the court below discharged the rule granted thereon. According to the opinion filed in that connection, the husband paid the order up to February 15, 1950, and was not then in default. Instead of thereafter making an effort to secure an order of support in the court of quarter sessions, which could have been certified to and entered in the court of common pleas as a judgment under the Act of May 8, 1901, P.L. 143, 12 P.S. 1001, the wife has sought to obtain a like result by artificially prolonging the divorce action, and attempting to confer upon the award of alimony pendente lite a status which we believe is unwarranted.

[ 190 Pa. Super. Page 358]

The Act of 1921, presently under consideration, is set forth in full in the footnote.*fn1 It is apparent that the primary object of this statute was to authorize the collection of support orders from spendthrift trusts. As pointed out in our prior opinion, Wargo v. Wargo, supra, 184 Pa. Superior Ct. 587, 136 A.2d 163, awards of alimony pendente lite differ somewhat in character from orders for support. "One of the purposes in ...


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