Appeal, No. 234, April T., 1961, from judgment of County Court of Allegheny county, No. 1194 of 1960, in case of Lena Mallinger v. Isadore Mallinger. Judgment affirmed.
Melvin Schwartz, with him Alexander cooper, and Cooper, Goodman & Schwartz, for appellant.
Abraham Fishkin, with him Joseph D. Ripp, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 35]
Lena Mallinger, appellee, and Isadore Mallinger, appellant, being the parents of Anita Ellen Mallinger,
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then five years of age, on March 21, 1951 entered into a written agreement providing for custody of the child in the mother with rights of visitation in the father at times to be mutually agreed upon. The agreement also provided that the father should pay to the mother $25.00 per week (later increased by oral agreement to $30.00 per week) for the support of the child.
The appellant made payments until January 6, 1959 when he stopped making payments because the mother refused the right of visitation. The mother then filed a complaint in assumpsit and the father filed an answer admitting the contract and his failure to pay but excused his failure upon the breach by the mother. The court below entered judgment on the pleadings for the mother in the sum of $2,280.00.
There is a well defined principle of law that where an agreement is mutual and dependent, and one party fails to perform his part, the other may treat the contract as breached: Camenisch v. Allen, 158 Pa. Superior Ct. 174, 177, 44 A.2d 309. This, however, is not the ordinary case and that principle is not applicable.
Custody of children is not a property right of the parties. The court may, if it is for the welfare of the child, enforce the bargain, but will not do so otherwise: Restatement, Contracts, § 583, comment a. The duty to support a child arises not because of the contract but because of law. It arises independently and no because of the mutual promises in the agreement. As was said by Judge, later Justice, ARNOLD, "the duty of the father to support a three year old child is well nigh absolute." See Com. ex rel. Firestone v. Firestone, 158 Pa. Superior Ct 579, 581, 45 A.2d 923. In that case the court in one order decreed (1) the right of visitation to the father and (2) support ...