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COMMONWEALTH EX REL. MCALAINE v. MCALAINE (04/14/64)

April 14, 1964

COMMONWEALTH EX REL. MCALAINE
v.
MCALAINE, APPELLANT.



Appeal, No. 39, Oct. T., 1964, from order of Court of Quarter Sessions of Montgomery County, June T., 1953, No. 345, in case of Commonwealth ex rel. Ann C. McAlaine v. D. Paul McAlaine. Order vacated, and prior order reinstated.

COUNSEL

Victor J. Roberts, with him High, Swarts, Roberts & Seidel, for appellant.

Vincent A. Cirillo, with him Julian W. Barnard, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Monthgomery, and Flood, JJ.

Author: Montgomery

[ 203 Pa. Super. Page 277]

OPINION BY MONTGOMERY, J.

By an order of the Quarter Sessions Court of Montgomery County, dated March 8, 1961, appellant-defendant D. Paul McAlaine was ordered to pay his wife, Ann C. McAlaine, the sum of $15 per week for her support and further sums of $20 per week for each of his children, namely, Nancy G., William C., and Janet E. In addition, he was ordered to continue payments of principal, interest, taxes, and insurance on jointly owned property in which the wife and children resided. Appellant had been under an order of the court for the support of his family since August 27, 1953.

On March 6, 1963, appellant filed his petition seeking a reduction of the payments that he was obligated to pay under the March 8, 1961, order, advancing two reasons, viz., (a) Nancy became 18 years of age on September 1, 1962, and is now capable of supporting herself, (b) petitioner's income has been reduced since the last order and is now "virtually nonexistent". In an answer to that petition, the wife-prosecutrix of the action admitted that Nancy had become 18 years of age on September 1, 1962, but denied that she was capable of self-support since she was in training to become a nurse. She also denied the allegations of the petition concerning appellant's financial position. In her answer she also sought to enforce unpaid awards due under the earlier order.

After a full hearing, the court, on April 5, 1963, entered an order removing Nancy from the benefits of the previous order, thereby reducing the amount payable thenceforth by $20 on her account, reduced the payments of $20 for each of the other children to $18 each, continued the $15 payment for the wife, and added a provision for payments of $10 per week on account of arrearages, making total payments of $61 per week. No appeal was taken from that order. However, on August 2, 1963, following the decision of this

[ 203 Pa. Super. Page 278]

Court in Commonwealth ex rel. Ulmer v. Sommerville, filed April 18, 1963, and reported in 200 Pa. Superior Ct. 640, 190 A.2d 182, the prosecutrix filed a petition for a rehearing, which was held after notice. Following that hearing, the lower court on October 16, 1963, amended its order of April 5, 1963, to include support for Nancy at $15 per week and reaffirmed the other provisions of its prior order, making appellant's total weekly payments $76, including the item of $10 on account of arrearages. In this appeal from that order the defendant questions the right of the lower court to include the allowance for Nancy because (a) the petition for rehearing was too late, having been filed beyond the time allowed for an appeal, and (b) such order placed an undue hardship on him.

Recognizing that the Quarter Sessions Court has the power to adjust such support orders when the circumstances of the parties change, Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437 (1953), we note that the only change referred to in the petition for the rehearing was the filing of our opinion in Commonwealth ex rel. Ulmer v. Sommerville, supra. The primary question, therefore, is whether the filing of that opinion is such a circumstance that gives the court the power to change the order. Our attention is directed to the fact that the aforesaid opinion in the Sommerville case, supra, was filed within the statutory period provided for an appeal from the aforesaid order of March 6, 1963. Therefore, we must also recognize that there was ample time for appellee ...


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