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COMMONWEALTH EX REL. RUBIN v. RUBIN (09/23/74)

decided: September 23, 1974.

COMMONWEALTH EX REL. RUBIN
v.
RUBIN, APPELLANT



Appeals from orders of Court of Common Pleas of Montgomery County, June T., 1969, No. 737, and No. 72-12663, in case of Commonwealth of Pennsylvania ex rel. Pearl H. Rubin v. Jack B. Rubin.

COUNSEL

Desmond J. McTighe, with him LeRoy Comanor, for appellant.

John F. Solomon, Jr., with him William L. O'Hey, Jr., and Henderson, Wetherill, O'Hey & Horsey, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Van der Voort, J.

Author: Hoffman

[ 230 Pa. Super. Page 592]

In this appeal, we must decide whether an order for alimony pursuant to a decree in divorce from bed and board terminates a prior order for support.

On August 25, 1969, the appellee filed a Complaint in Divorce a.m.e.t. (from bed and board). Pending determination of the matter, an action for nonsupport was instituted by the appellee, and following a hearing, the Honorable Richard S. Lowe of the Court of Common Pleas of Montgomery County entered an Order directing the appellant to pay the sum of $1600.00 a month for the support of his wife. After a hearing, a Master in Divorce recommended the granting of a divorce from bed and board and the award of alimony in the amount of $400.00 per month. An Order of the Court, affirming that recommendation, was entered by the Court on April 1, 1971, divorcing the parties from bed and board and ordering the appellant to pay alimony to his wife in the amount of $400.00 per month.

On October 12, 1971, appellant filed a Petition to Terminate the Support Order on the ground that the subsequent alimony award supplanted the pre-existing support obligation. While that matter was pending, the appellee entered a default judgment against the appellant for $22,400.00 in arrearages, this amount representing the accrued support payments which her husband had refused to pay since the entry of the divorce decree. As a result of the judgment, appellee, on November 14, 1972, attached appellant's stock in the Milton Bradley Co. On September 20, 1973, appellant filed a Petition

[ 230 Pa. Super. Page 593]

    to Strike and Set Aside the Judgment and to Stay Execution.

Argument was heard on both petitions on March 30, 1973. Reargument was held before Judges Lowe and Stefan, on January 17, 1974. On February 1, 1974, the lower court dismissed both of appellant's petitions. The instant appeals followed.

In determining that both the prior support order and the award for permanent alimony could exist as supplementary to each other, the lower court, in its Opinion, states: "It is conceded that all parties, including the Court, conceived the alimony award to be in addition to the Support Order." In rationalizing the vitality of both support obligations, the court dismissed the "dictum" of Heilbron v. Heilbron, 158 Pa. 297 (1893), and its progeny, which declared as a general proposition that "[a] decree of divorce a.m.e.t. awarding permanent alimony to the wife is a bar to any action for support on behalf of the wife in quarter sessions . . . ." Marra v. Marra, 189 Pa. Superior Ct. 180, 184, 149 A.2d 175 (1959); see also, Freedman, Law of Marriage and Divorce, 2d ed., ยง 483. This rejection of Heilbron's "pristine dictum " was grounded upon the belief of the court that since the Legislature continued to provide for remedies in support actions and in alimony awards from a divorce a.m.e.t., and since Constitutional Amendment*fn1 had abolished the Quarter Sessions Court, "jurisdiction to enter an alimony decree and a support order runs concurrently in the Common Pleas Court."

We do not agree. The reasoning of the court below ignores the basic purposes of each of the remedies hereunder. As we said in McFarland v. McFarland, 176 Pa. Superior Ct. 342, 346, 107 A.2d 615 (1954): "A divorce from bed and board is no more than a ...


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