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COMMONWEALTH EX REL. FRYLING v. FRYLING (11/11/71)

decided: November 11, 1971.

COMMONWEALTH EX REL. FRYLING, APPELLANT,
v.
FRYLING



Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1967, No. 86, in case of Commonwealth ex rel. Myrtle D. Fryling v. Warren E. Fryling.

COUNSEL

Stanford Shmukler, with him Richard P. Abraham, for appellant.

John Marston, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins and Jacobs, JJ., dissent and would affirm the order of the court below.

Author: Hoffman

[ 220 Pa. Super. Page 69]

This is an appeal from an order of the Court of Common Pleas of Bucks County decreasing a support order and remitting arrearages owed by appellee-husband to appellant-wife.

Briefly stated, the procedural history is as follows: The first hearing in this dispute was held in 1967, at which time a support order of $425 per month was entered against appellee. Evidence produced at subsequent hearings indicated that appellee's employment situation had deteriorated. Although the support orders were accordingly reduced, a substantial arrearage accumulated. At a later hearing one half of the arrearages were remitted, but they again continued to rise, and upon one occasion appellee was committed to jail for contempt of court. In January, 1970, appellee advised the court that he had been dismissed from his

[ 220 Pa. Super. Page 70]

    job. After a hearing the previous support order of $75 per week was suspended.

In March, 1970, the court was informed that appellee had obtained new employment at a lower compensation. A hearing was held at which appellee testified concerning his outstanding debts and current income. Appellee admitted that he believed he could afford to pay $30 per week for support and another $5 per week to reduce arrearages. The lower court noted that it felt appellee had contributed to the substantial arrearages by his behavior and wilful disregard of the support orders. However, the court ordered that the support order be reduced to $30 per week and remitted all the arrearages, totaling $2,117. Appellant's counsel objected on the basis that he was not prepared to argue the matter of arrearages because he did not realize they were in issue, and he felt jointly-held property sufficient to pay the arrearages should be considered. The court replied that it had considered the issue of arrearages on its own motion in the interests of justice, and that it would consider a new petition at a later time.

On appeal appellant contends, inter alia, that the lower court's remission of all arrearages was an abuse of discretion.

"It is well settled that the purpose of a support order is to secure such an allowance to the wife and child as is reasonable, having in mind the husband's property and earning capacity and the station in life of the parties." Commonwealth ex rel. Kallen v. Kallen, 200 Pa. Superior Ct. 507, 508-09, 190 A.2d 175, 176 (1963). In considering whether an order should be remitted, reduced, ...


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