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COMMONWEALTH EX REL. MCGOVERN v. MCGOVERN (03/27/73)

decided: March 27, 1973.

COMMONWEALTH EX REL. MCGOVERN, APPELLANT,
v.
MCGOVERN



Appeal from order of Court of Common Pleas of Chester County, Feb. T., 1967, No. 47, in case of Commonwealth ex rel. Bernice J. McGovern v. Frank J. McGovern.

COUNSEL

Fred T. Cadmus, III, with him Cadmus, Good and Patten, for appellant.

John J. Duffy, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J.

Author: Watkins

[ 225 Pa. Super. Page 282]

This is an appeal by the appellant-wife, Bernice M. McGovern, from an order of the Court of Common Pleas of Chester County discharging a rule to show cause why an order of support should not be increased because of changed circumstances.

On September 14, 1971, an order of support was entered by the late Judge Carl B. Shelley, specially presiding, after hearing, directing payment by the husband, Frank J. McGovern, to pay his wife Fifty ($50) Dollars

[ 225 Pa. Super. Page 283]

    a week for the support of four (4) minor children and Ten ($10) Dollars per week for the support of the wife.

The question before us, on appeal, is whether the court below abused its discretion in finding no change in circumstances warranting an increase of the original order.

The burden of proof rests on the party seeking to modify a court order. The party must show in this case by competent evidence such change or changes that will justify modification. Commonwealth ex rel. Heineman v. Heineman, 185 Pa. Superior Ct. 32, 137 A.2d 349 (1958); Commonwealth ex rel. McAlaine v. McAlaine, 203 Pa. Superior Ct. 276, 199 A.2d 498 (1964).

At the original hearing, the appellant was represented by other counsel and there is no transcript of testimony because it was not reported. The change of circumstances alleged was due to increased earnings by the husband or that he earned more than he had admitted at the original hearing. The original order was evidently satisfactory to both sides as no appeal was taken by either party. The period from September 14, 1971, to December 30, 1971, is a short period to show change of circumstances by earnings and indicates that perhaps the petition was taken as a substitute for an appeal.

The parties separated in October, 1971, four children ranging in ages from 10 to 15 years reside with the mother. The oldest boy attends Friends School and it costs approximately One Thousand ($1,000) Dollars yearly which is paid for by the father. The wife was employed at the time of the separation, and was earning One Hundred, Twenty-Four ($124) Dollars weekly. Also at the time of separation, she withdrew one-half ...


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