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COMMONWEALTH PENNSYLVANIA EX REL. BLAIR BURNS v. ROSEMARY BURNS. COMMONWEALTH PENNSYLVANIA EX REL. ROSEMARY BURNS V. BLAIR BURNS (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA EX REL. BLAIR BURNS, APPELLANT,
v.
ROSEMARY BURNS. COMMONWEALTH OF PENNSYLVANIA EX REL. ROSEMARY BURNS V. BLAIR BURNS, APPELLANT



Appeals from the Orders of the Court of Common Pleas, Criminal Division, of Bucks County, at Miscellaneous No. 449 of 1976-02, No. 148 May Term, 1968-02.

COUNSEL

Sue N. Lang, Doylestown, with her Williams, Glantz & Schildt, Doylestown, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion. Van der Voort, J., dissents.

Author: Hoffman

[ 251 Pa. Super. Page 395]

Appellant contends that the lower court abused its discretion: (1) by refusing to vacate or reduce an order requiring him to pay $20 per week for the support of his daughter and (2) by dismissing his petition requesting the court to order appellee to contribute to the support of the parties' two sons. We affirm the lower court's order dismissing appellant's petition to vacate or modify the $20 per week support order. However, we reverse the lower court's order dismissing appellant's petition that appellee be ordered to contribute to

[ 251 Pa. Super. Page 396]

    the support of the parties' two sons and remand for reconsideration in light of this opinion.

On January 18, 1968, appellee filed a complaint in the Criminal Division of the Bucks County Court of Common Pleas charging appellant, appellee's husband, with desertion and non-support*fn1 of his three children, Michele, Michael, and Robert, then respectively four, three, and two years old. After a hearing on November 20, 1968, the lower court ordered appellant to contribute $35 per week to the support of his three children. Shortly after the initiation of these proceedings, appellant and appellee were divorced. On May 23, 1969, December 11, 1970, March 18, 1971, and July 13, 1972, the parties appeared before the lower court in connection with various petitions for attachment of appellant for failure to comply with court orders, remission of delinquencies, and modification of appellant's support obligations. After the July 31, 1972 hearing, the lower court ordered appellant to pay $47 per week support for his three children.

On February 25, 1974, the parties entered into a written agreement which sought to modify the existing $47 per week support order. The agreement stipulated that Michael and Robert now resided with appellant and that Michele resided with appellee. The parties agreed that appellant would pay $20 per week for the support of Michele plus $5 per week on account of $600 in accumulated arrearages. On February 26, 1974, the lower court, without a hearing, entered an order adopting the terms of the agreement.

On March 11, 1976, appellant filed a petition which requested vacation of the February 26, 1974 support order, the remission of arrearages, and an order requiring appellee to contribute $40 per week for the support of Michael and Robert. On April 13, 1976, appellee countered by filing a petition which requested the lower court to increase appellant's support payments for Michele to $50 per week. On April 12, 1976, appellant filed a petition pursuant to the Civil

[ 251 Pa. Super. Page 397]

Procedural Support Act*fn2 which requested the court to vacate the existing support order and to direct appellee to contribute $40 per week to the support ...


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