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COMMONWEALTH EX REL. SMITH v. SMITH (06/11/70)

decided: June 11, 1970.

COMMONWEALTH EX REL. SMITH
v.
SMITH, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, June T., 1968, F-14-254, in case of Commonwealth ex rel. Edna H. Smith v. Charles Smith.

COUNSEL

Charles F. Mayer, for appellant.

Anna Iwachiw Vadino, Assistant District Attorney, with her Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Montgomery, J.

Author: Cercone

[ 217 Pa. Super. Page 2]

On February 21, 1969, Charles Smith was ordered to pay $40.00 per week for the support of his wife and one child Claudine, $15.00 for his wife and $25.00 for his daughter. In addition he was ordered to pay any necessary medical expenses of his daughter and the mortgage on the jointly owned home in which his wife and daughter resided. The mortgage payment was then $59.00 monthly, and his salary was then $116.72 a week. His wife was at that time earning $35.00 per week.

On August 8, 1969, the husband petitioned the court to vacate the order as to the daughter since she had graduated from high school. On September 17, 1969, the wife petitioned for an increase in the order of support. At this time, the husband's salary was $127.32 per week and the mortgage payments had increased to $65.00 monthly. The wife's earnings had increased to $48.00 weekly, and the daughter was attending Delaware State College, in Dover, Delaware. After a hearing in the matter on October 10, 1969, the court below refused to vacate the order as to the daughter and increased the

[ 217 Pa. Super. Page 3]

    order for the wife by $2.50, thus ordering the husband to pay a total of $42.50 per week, $17.50 for his wife and $25.00 for his daughter.

The husband has appealed to this court contending: (1) that he made no agreement to send his daughter to college; (2) that in the absence of such agreement his financial condition does not warrant an order for the payment of such college education; and (3) that it was an abuse of discretion for the court to increase the order of support in favor of his wife.

Appellant's own testimony, as it appears on record in the transcript of the proceedings, reveals that he did in fact promise to send his children to college; that he had sent another daughter to college and was sending his son to business school but his wife had him transferred to a southern college not of appellant's liking. The record reveals that he did want his daughter to attend college and that his objection was not that he could not afford a college education but that he did not choose the college she was attending. Appellant testified: "A. I don't object to her going to college. I had her on her way to college, and she*fn* has messed up two children going to college. Q. How would she mess up two children going to college? A. I had a boy, who I had in business school in Philadelphia. She took him out and sent him to Shaw in North Carolina. Today I don't know where he is. And, I was paying for him, and he would have gotten a degree. Today he is in a third rate college, and I don't think he will ever graduate from it. Q. Did you go to college? A. No, sir. My parents didn't have enough money to send me to college, but I promised them all I would send them to college. Q. What is wrong with the school where your -- A. Because she was supposed to go to Temple University. That's right. I had been working on a

[ 217 Pa. Super. Page 4]

    scholarship. She was to go to Temple, and that is why she switched her. She switched her at Christmas. Q. If your daughter were transferred to Temple University, would you object to that? A. No, sir. Q. You would not? A. No, sir." Mr. Smith: "Do I have any right to say where this child goes to school? I don't need no Court to tell me about sending my child to school. I want them to have an education. I was the one who sent the girl through college. I sent her. She was supposed to go to Temple. She started at Temple for ...


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