Edward S. Finkelstein, Harrisburg, for appellant.
Harry B. Goldberg, Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Decree affirmed. Costs on appellant.
ROBERTS, Justice (dissenting).
Antonetta Bria and Victor Bria were married on June 6, 1959, and shortly thereafter adopted a daughter Rosetta. In 1972, following a period of marital discord, the couple executed a separation agreement which provided, inter alia, that Victor would pay Antonetta $43 a week for the support of Rosetta. Later that year Victor and Antonetta were divorced.
Victor made full payment according to the support agreement for only a few weeks and then unilaterally reduced his payments to $30 a week. Antonetta filed a petition for child support in the Family Division of the Court of Common Pleas. After a hearing the court ordered Victor to pay child support of $31 a week. Neither party appealed from that order.
Subsequently Antonetta filed an action in equity in which she sought to have the support provision of the separation agreement specifically enforced. The chancellor determined that the support granted by the family division was adequate to support Rosetta and appropriate in light of Victor's income and therefore refused to grant the requested remedy. Antonetta then brought this appeal.
The chancellor, relying on Commonwealth ex rel. Balph v. Balph, 210 Pa. Super. 244, 232 A.2d 76 (1967), and Commonwealth ex rel. Snively v. Snively, 206 Pa. Super. 278,
A.2d 905 (1965), concluded that he was free to disregard the agreement of the parties. Although those cases do hold that a support order is not binding in all situations, the rationale of ...