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COMMONWEALTH EX REL. BUONOCORE v. BUONOCORE (06/24/75)

decided: June 24, 1975.

COMMONWEALTH EX REL. BUONOCORE
v.
BUONOCORE, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, May T., 1974, No. F-22-142, in case of Commonwealth ex rel. Bernard J. Buonocore v. Agnes B. Buonocore.

COUNSEL

Louis J. Sinatra, with him Levy and Levy, for appellant.

Thomas L. Kelly, with him Eckell, Sparks, Vadino, Auerbach & Monte, for appellee.

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

Author: Cercone

[ 235 Pa. Super. Page 67]

This is an appeal from the order of the court below directing the appellant-wife, Agnes Buonocore, to pay her husband, Bernard Buonocore, $30 per week for the partial support of their two minor children. For the reasons that follow we affirm the lower court's order.

The parties were married in May of 1958, and are the natural parents of the two minor children here involved. In May of 1973, the wife separated herself from her husband and their children, and moved to Delaware County, Pennsylvania. The husband and two minor children have resided continuously in Wilmington, Delaware. Since the separation the husband has had the entire responsibility for the support and maintenance of the two minors. The instant controversy arose in March of 1974, when the husband filed a petition for partial support of the children.

[ 235 Pa. Super. Page 68]

There are two issues presented by this appeal. The first is whether the husband properly demonstrated a right to the entry of a support order for the support of the two minor children residing with him. Secondly, whether the support order entered by the lower court was excessive under all of the circumstances.

The husband's petition for support of the two minor children is predicated upon the Act of June 24, 1937, P.L. 2045, Section 3, as amended, 62 P.S. ยง 1973, entitled "Relatives liable for the support of indigent person; procedure to enforce support." This Section provides in pertinent part as follows:

"The husband, wife, child, (except as hereinafter provided), father and mother of every indigent person, whether a public charge or not, shall, if of sufficient financial ability, care for and maintain, or financially assist, such indigent person at such rate as the court of the county, where such indigent person resides shall order or direct . . ."

The wife argues that the husband and the two minor children failed to establish that they are indigent as required by the above statute. The question of indigency, however, related solely to the minor children since the husband has brought an action for support of the children and not of himself. In the case of Commonwealth ex rel. Home for the Jewish Aged v. Kotzker, 179 Pa. Superior Ct. 521, 525 (1955), we stated the following with regard to the term "indigent" as it applies to the aforementioned Act:

"'Indigent' is not defined in the Act, but it is specifically provided that such person need not be a public charge, indicating therefore that such 'indigent' need not be 'helpless and in extreme want; so completely destitute of property as to require assistance from the public' as contended by appellant. By 'indigent' persons is meant those who have not sufficient means to pay for ...


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