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SMICK v. SMICK (09/23/74)

decided: September 23, 1974.

SMICK
v.
SMICK, APPELLANT



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 271212, in case of Joanne Smick v. Louis G. Smick, Jr.

COUNSEL

Joseph Michael Smith, with him John R. Jakubowski, and Smith and Jakubowski, for appellant.

Robert S. Lucarini and Eric L. Lilian, submitted a brief for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Spaeth, J., took no part in the decision of this case.

Author: Watkins

[ 230 Pa. Super. Page 257]

This is an appeal from an order of support entered by the Court of Common Pleas of Philadelphia County, Family Division.

The procedure has been complicated as the petition is one entitled for support; a Writ of Habeas Corpus and an attachment for arrearages were also filed. The record shows that the decision was reserved as to the attachment; the petition for a writ of habeas corpus was withdrawn; and after hearing an order was entered directing the husband-appellant, Louis Smick, Jr., to pay to his wife-appellee, Joanne Smick, the sum of $30.00 weekly for the support of a child, Michelle, aged 7; $10.00 weekly for the support of the appellee, and $10.00 weekly on account of arrearages, or a total of $50.00 per week.

We do not have the guidance of an opinion by the court below as Judge King is no longer a member of the judiciary. However, there was an original order of support entered on December 17, 1970, unappealed from, in the sum of $40.00 per week for the wife and $20.00 per week for the child. At that time the appellant

[ 230 Pa. Super. Page 258]

    was earning approximately $200.00 per week. The arrearages on this order at the time of the hearing were $6085.00.

The petition which is the subject of this appeal is entitled "Petition for Support" but must be treated as a petition to increase support based on changed circumstances and for an attachment to collect arrearages. The husband-appellant was granted a divorce from the appellee-wife on January 29, 1974 and her support under the present order ceased on that date. The original order was unappealed from so the court below properly provided for payment of arrearages which amounted to $6085.00 at the time of the hearing. The parties agreed that the appellant is entitled to a credit on arrearages of $3220.00 for periods in which they were living together so the arrearages balance amounted to $2865.00 and that the order to the wife should cease as of January 29, 1974 as to the wife.

This court granted a supersedeas to the appellant on appeal of the order on condition that he pay to his wife, pending the disposition of the appeal, the sum of $15.00 weekly for the support of the child.

The only problem left to be decided by this appeal is whether the court below abused its discretion in fixing total payments of $50.00 weekly. The appellant's gross earnings at the time of the hearing ...


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