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DE WELLES v. DWELLE (06/13/69)

decided: June 13, 1969.


Appeal from order of Court of Common Pleas of Allegheny County, No. C 2701 of 1966, in case of Jolee De Welles v. V. David Dwelle.


V. David Dwelle, appellant, in propria persona.

W. Ivill, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissent.

Author: Per Curiam

[ 214 Pa. Super. Page 377]

This appeal is from an order*fn1 dismissing, after hearing, appellant's petition for the privilege of visiting his two children as he "is now able to provide support or some payment on the arrears." The petition disclosed that appellant was in arrears $2,252.77 in his support payments at the time it was filed. Although at the hearing conducted by Judge Guffey appellant testified that he would be able to pay $40 per month toward the support order, this is doubtful. For two months prior to the hearing appellant was living on temporary public assistance grants of $89, which he had been receiving; and his future income as a substitute teacher in the public schools of Pittsburgh was conjectural. He expected to get eight days a month at $30.50 a day less deductions, but had no assurance of this.

A review of the history of this case may aid in our disposition of this appeal. The parties were married on November 24, 1962 and had two children, David Joseph and Darrell Rice. On October 20, 1966 the mother first petitioned for support, alleging desertion as of April 1, 1966. At that time David Joseph was three and Darrell Rice was one year of age. Pursuant to that petition an order was made by Judge Guffey for their support in the amount of $250 per month. This order was modified on February 8, 1967 to $200 per month, with partial custody awarded to the father on alternate Saturdays and Sundays, 1:00 p.m. to 6:00 p.m. Thereafter, on April 24, 1967, by agreement of the parties, the order was reduced to $160 per month and the father was granted the privilege ". . . to have custody on alternate Saturdays and Sundays once

[ 214 Pa. Super. Page 378]

    weekly from 1 P.M. to 6 P.M., and when wife commences full time employment, and additional visitation once every two weeks." Appellant, having failed to make his payments, was held in contempt and on September 25, 1967 was ordered to pay $210 by October 15, 1967. On September 25, 1967 he filed a petition to have the order reduced because of reduced income and to have his visitation and partial custody order enforced. After several postponements of the hearing on this petition an order was entered by Judge Guffey on May 2, 1968 as follows: ". . . on trial list and after hearing, order for support suspended and also partial custody order is reversed, by agreement of prosecutrix and on order of court. Defendant pay costs by May 17, 1968. Body attachment is dismissed." No appeal was taken from this order. However, on November 25, 1968 the petition on which this appeal is based, which we previously mentioned at the inception of this discussion, was filed.

Although at the oral argument of this appeal we indicated that the matter should be remanded for a transcript of the record of the hearing on the current petition and an opinion of the lower court, our examination of the original record discloses the transcript of the testimony taken at that hearing; and the reason for the order is obvious, i.e., there has been no change in circumstances which justify a change in the unappealed order agreed to on May 2, 1968. The fact that the mother has remarried and the children are being provided for by her new husband, in the absence of any support proffered by their father, is not a circumstance which should give him renewed visitation privileges. If and when he is able to demonstrate his ability and willingness to support his children, he may again appeal to the lower court for an appropriate order. He failed to do so at the last hearing.

[ 214 Pa. Super. Page 379]

The welfare of the children is of paramount interest in matters of this nature; and we cannot say that the lower court failed to recognize this in dismissing appellant's petition, particularly in light of its close association with the case during its troublesome course.

Our decision is based on the facts of this case which clearly demonstrate that appellant neglected or refused to provide necessary support for his children when he was able to do so. We do not intend to establish the general principle that a father may visit his children only when he is contributing to their support. However, we do hold that when the assertion of the privilege of ...

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