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COMMONWEALTH EX REL. SWINBURNE v. MULLEN. (09/16/60)

September 16, 1960

COMMONWEALTH EX REL. SWINBURNE, APPELLANT,
v.
MULLEN.



Appeal, No. 148, Oct. T., 1960, from orders of Municipal Court of Philadelphia County, April T., 1955, No. 882, in case of Commonwealth ex rel. Doris A. Swinburne v. Joseph Mullen. Orders reversed and record remanded.

COUNSEL

Leo H. Loffel, with him Alexander H. Borden, for appellant.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Montgomery, JJ. (watkins, J., absent).

Author: Ervin

[ 193 Pa. Super. Page 238]

OPINION BY ERVIN, J.

On March 3, 1955, under an agreement between the parties, the court below entered an order of $50.00 a week against Joseph William Mullen for the support of his wife, Doris A. Mullen, and three children, Ronald, Joseph and William. On January 27, 1959 a written agreement was entered into by the parties reducing the support order to $30.00 per week for two children only, Joseph and William, effective January 27, 1959, Ronald having become 18 years of age. By the agreement it was further provided that Mr. Mullen should pay $10.00 per week toward the arrearages on the original order or $40.00 per week. This agreement was later sent to the court by mail and was received by the court

[ 193 Pa. Super. Page 239]

    below on January 23, 1960. With the agreement came a letter, addressed to Judge GILBERT of the court below, dated January 22, 1960, from Mr. Borden, attorney for Mrs. Mullen, stating that "Joseph Mullen has fallen into arrearages again for several months [under the agreement] and therefore my client wishes to issue an attachment against the said Joseph Mullen. Accordingly, I desire to file the enclosed agreement of record, and I am informed that your approval of same is required in connection with said filing." We have looked at the original agreement and so far as we can determine it was never approved by the court below. The court below elected to treat the agreement as a petition to readjust the order and listed the matter for hearing on March 1, 1960. After two continuances the case was finally heard on March 25, 1960. Mrs. Mullen, subsequently divorced and married to a man by the name of Swinburne, did not appear at the hearing. Also listed for hearing on March 25, 1960 was a petition for a writ of habeas corpus (which writ was issued August 12, 1959) and also an attachment proceeding against Mr. Mullen and his petition for credit against arrears. In his petition for the writ of habeas corpus Mr. Mullen sought full custody of his children, claiming that Mrs. Mullen was unfit to have custody. There was no sheriff's return among the papers to show that the writ of habeas corpus was ever served upon Mrs. Mullen. The court below found that it was served upon her because it was left in a mail box at her place of residence in Philadelphia. Of course this was not a proper service of the writ and we are, therefore, of the opinion that the court below had no right to enter upon a hearing of the habeas corpus proceeding. Sometime after the issuance of the writ but before its service Mrs. Mullen remarried and moved to California, where she is now living with her present husband and the children.

[ 193 Pa. Super. Page 240]

After the hearing the court below entered an order under date of March 25, 1960, disposing of the matters as follows: "Order vacated as to child Ronald as of October 2, 1958, and order reduced effective October 2, 1958, to $40.00 per week for wife and two children, Joseph and William.

"Order vacated as to wife as of January 30, 1959, and order reduced effective January 30, 1959, to $20.00 per week for two children, Joseph and William.

"Order last stated and arrears are suspended pending appearance of ex-wife, Doris A. Swinburne, and production by her of children, Joseph and William, in this court in response to writ of habeas corpus ...


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