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COMMONWEALTH EX REL. DECKER v. DECKER (09/17/64)

decided: September 17, 1964.

COMMONWEALTH EX REL. DECKER
v.
DECKER, APPELLANT



Appeal from order of Court of Quarter Sessions of Delaware County, June T., 1964, No. F-4-83, in case of Commonwealth ex rel. Marguerite Decker v. Christian F. Decker, Jr.

COUNSEL

Lester J. Schaffer, with him Zink, Shinehouse & Holmes, for appellant.

Sydney Finkelstein, with him Theodore C. Jenkins, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J.

Author: Woodside

[ 204 Pa. Super. Page 158]

This is an appeal from an order modifying a support order. The support order should not have been entered in the first place. When the original order was made, the parties involved, Mr. and Mrs. Decker, were living together under the same roof and eating at the same table. Indeed, the court directed Mr. Decker to pay Mrs. Decker to buy the food to feed Mr. Decker. Both parties were working and jointly owned the house in which they lived. Courts have no right to put their fingers into the family pocketbook and divide the family income. Commonwealth v. George, 358 Pa. 118, 124, 56 A.2d 228 (1948); Commonwealth ex rel. Mitterling v. Mitterling, 201 Pa. Superior Ct. 538, 542, 193 A.2d 618 (1963).

It appears that when the original order was entered the court assumed that the defendant would pay certain expenses of operating the house. It was inevitable that the case should be cluttered with arguments concerning who was to pay for what. The court cannot now expand the original order to include payment to the wife for a variety of household expenses incurred prior to the modifying order under the guise of "reforming" the original order. See Commonwealth v. Fairman, 195 Pa. Superior Ct. 170, 175, 169 A.2d 311 (1961).

The original order was entered in June 1958, and directed the defendant to pay $65 a week for the support of his wife and their son, then 15 years of age. As no appeal was taken from that order, it became technically legal, and as the parties are now separated, it has become factually proper.

In 1962 both parties filed petitions to modify the original order -- she to increase it, and he to reduce it. The petitions were consolidated for a hearing which was concluded July 30, 1962. No determination was made on the petitions to modify until March 25, 1964,

[ 204 Pa. Super. Page 159]

    when the court ordered: (1) that the order of support for the wife alone be fixed at the sum of $65 per week; (2) that the defendant reimburse the wife in the sum of $450 "for money paid out by said wife for utilities, etc.;" (3) that the defendant reimburse the wife in the amount of $4,000 for the sum the wife paid to cover the son's college year of 1961; and (4) that the defendant reimburse the wife for any and all moneys and sums paid by her to cover the son's college years of 1962, 1963 and 1964, but not to exceed the sum of $2,000 for any one of said college years. This order is now before us on appeal by the defendant.

It has been long and firmly established that the order in a support case involving a summary proceeding may not be retroactive. Commonwealth ex rel. Voltz v. Voltz, 168 Pa. Superior Ct. 51, 54, 76 A.2d 464 (1950); Commonwealth ex rel. Yeats v. Yeats, 168 Pa. Superior Ct. 550, 554, 79 A.2d 793 (1951); Commonwealth ex rel. Sharpe v. Sharpe, 193 Pa. Superior Ct. 161, 165, 163 A.2d 923 (1960); Keller v. Commonwealth, 71 Pa. 413, 417 (1872). See also Commonwealth v. Shavinsky, 180 Pa. Superior Ct. 522, 525, 527, 119 A.2d 819 (1956). Items 2 and 3 of the order of March 25, 1964, were intended by the court below to apply retroactively even at the date of the hearing. They must be stricken in their entirety. That part of Item 4 relating to the reimbursement to the wife for funds advanced to the son for education prior to the date of the order is retroactive and must be stricken for that reason.

The court did not abuse its discretion in ordering the defendant to pay part of his son's educational expenses subsequent to March 25, 1964. The son entered University of Pennsylvania in the fall of 1961 and presumably will be graduated in the spring of 1965. He has maintained good marks at the ...


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