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PATRICIA LENOIR COSTELLO v. JOSEPH LENOIR (05/13/75)

decided: May 13, 1975.

PATRICIA LENOIR COSTELLO
v.
JOSEPH LENOIR, APPELLANT



COUNSEL

Joel N. Brewer, Community Legal Services, Law Center Germantown, Philadelphia, for appellant.

No appearance for appellee.

Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a concurring opinion. Eagen, J., did not participate in the consideration or decision of this case.

Author: Pomeroy

[ 462 Pa. Page 38]

OPINION OF THE COURT

Joseph LeNoir, the appellant, and Patricia LeNoir Costello, the appellee, were divorced in 1966. They have one daughter, Jane, aged 14, who is residing with her mother. The proceedings from which this appeal arises commenced when Patricia filed on May 18, 1972 in the court below a petition for Jane's support.*fn1 No answer to this petition was filed.

[ 462 Pa. Page 39]

At the hearing upon the petition, Patricia testified that while she and Joseph were married he had been employed as an electrical engineer, earning between $8,000 and $20,000 a year, and that since their divorce Joseph had worked at various times as a carpet layer, earning $30 per day, and had worked also as a bartender. Mrs. Costello testified further that at the time of the hearing Joseph was making no contribution to Jane's support. She said that she herself was employed as a waitress, and was earning approximately $110 per week.

Joseph, who was not represented by counsel at the hearing, testified that approximately a year previously he had been involved in an automobile accident in which he suffered two broken arms, two crushed elbows, a broken shoulder, and a broken wrist. He said also that he had lost his job as a design draftsman with an engineering firm as a result of his physical condition following the accident; that he had worked temporarily as a carpet layer and bartender; and that despite earnest efforts he had been unable to find permanent employment, and was presently unemployed. Finally, he testified that for the

[ 462 Pa. Page 40]

    past six months he had been receiving public assistance,*fn2 and that his hospital bill of $5,000 had been paid by the welfare authorities.

At the close of the hearing the court ordered Joseph to pay appellee twenty dollars per week towards the support of Jane. On appeal, the Superior Court affirmed, per curiam. We granted allocatur,*fn3 and this appeal followed.*fn4

It is beyond question that every parent has a duty to support his or her minor children. This duty of support rests upon both mothers and fathers; each parent is obligated to contribute to the support of his or her children in accordance with the parents' respective abilities to pay. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Each parent's ability to pay is dependent upon his or her property, income and earning capacity, Conway v. Dana, supra at 540, 318 A.2d at 326, and is to be determined as of the time at which support payments are sought, Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1968); Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1954); Commonwealth ex rel. Simmler v. Simmler, 134 Pa. Super. 339, 4 A.2d 215 (1938). A support order must be ...


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