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COMMONWEALTH EX REL. CHILA v. CHILA (12/11/73)

decided: December 11, 1973.

COMMONWEALTH EX REL. CHILA, APPELLANT,
v.
CHILA



Appeal from order of Court of Common Pleas of Clearfield County, Feb. T., 1957, No. 64, in case of Commonwealth of Pennsylvania ex rel. Marie Chila v. Philip Chila.

COUNSEL

Anthony S. Guido, for appellant.

Edward T. Kelley, for appellee.

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

Author: Cercone

[ 226 Pa. Super. Page 337]

This is an appeal from an order of the Court of Common Pleas of Clearfield County, remitting arrearages and increasing a support order.

The lower court entered an order of support dated April 17, 1957, which provided for the payment of $50 per month by the appellee, Philip Chila, for the support of a child and procedures for visitation. A hearing was held before the lower court on July 23, 1971, on a petition to review the 1957 order. As a result thereof, the lower court entered an order increasing the support

[ 226 Pa. Super. Page 338]

    payments from $50 to $75 a month based upon appellee's then capacity to pay and his voluntary agreement to do so. The court held open the question of $4,070 in arrearages claimed by the appellant, Mrs. Chila, until further investigation could be made by the court. A final hearing was held on September 13, 1972,*fn1 at which time the lower court confirmed its previous support order and remitted the claim for arrearages from $4,070 to $230.

Appellant's first claim is that the lower court abused its discretion in remitting arrearages from $4,070 to $230. The lower court summarized the relevant testimony before it as follows: "Although Mrs. Chila complains of the rough and arrogant attitude of her former husband when he first attempted to exercise visitation rights, in the opinion of the court such a response was either initiated by her expressed objective showing of dislike towards him and/or by the continued refusal of she [sic] and her parents to reveal her location and the location of the child. His conduct was nothing more than a natural response to her defiance of the initial court order. When defendant finally did begin to recover from his extreme financial straights [sic] and attempted to give her $75 in cash, she refused it and also refused visitation with his son. (R-p. 15). During all this period Mr. Chila was in constant contact with the Clearfield County probation office and although the record does not show a direction to him not to continue with his payments, considering a man of his limited education having foremost in his mind Judge Pentz's initial order which on its face coupled payment with visitation, the Clearfield County probation office clearly indicated to him that they did not expect payment as they could not forward it to the proper person ; (R-p.

[ 226 Pa. Super. Page 33917]

, 21) (emphasis supplied) likewise the records of the Clearfield County probation office clearly supports his periods of unemployment both due to injury, recession and strike and they certainly indicated a condonation of his actions in not instituting proceedings to enforce his support order at these earlier dates. He had every right to consider that his payments within his financial ability and circumstances were in full payment and that arrearages were not accumulating except as hereinabove noted and assessed."

We agree with appellant's statement of the law that matters of support are separate and independent from problems of visitation and custody and that ordinarily, a support order must be paid regardless of whether the wife is wrongfully denying the father's right to visitation. Commonwealth v. Mexal, 201 Pa. Superior Ct. 457 (1963); Commonwealth ex rel. Mickey v. Mickey, 220 Pa. Superior Ct. 39 (1971); Commonwealth ex rel. Crane v. Rosenberger, 212 Pa. Superior Ct. 144 (1968). Contrary to appellant's argument, however, these cases are either distinguishable under their facts or they support rather than contradict the decision rendered by the lower court. Commonwealth ex rel. Mickey v. Mickey, supra, is not controlling in that its holding was primarily limited to our again accepted pronouncement that ordinarily support payments cannot be suspended due solely to a denial of visitation. Although in Mickey, supra, the wife had also moved from her original location, there is no indication that she repeatedly withheld information as to her new address from her husband as well as from the probation officials. Furthermore, in the instant case the ...


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