Catherine R. Barone, Philadelphia, for appellant.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 411]
This is an appeal from an order directing appellee to pay $40 per week support for his minor child and retroactively vacating his obligation to pay support to his wife. We reverse and remand for further proceedings.
In 1972 appellee was ordered to pay $60 per week for the unallocated support of his wife and child. In 1975 the award was increased to $88 per week, with the wife to pay off the mortgage on the jointly owned home. Pursuant to proceedings instituted by appellee, a divorce decree was entered by the lower court on December 1, 1975. On January 22, 1976, appellee petitioned the lower court to vacate the support order. Following a hearing, the lower court evidently determined that the wife had not received notice of the December 1 divorce decree, for on February 4, 1976, the court entered an order vacating the decree; it did not rule on the petition to vacate support, presumably because, with the vacation of the decree, the parties were still married. On July 2, 1976,
[ 254 Pa. Super. Page 412]
the court reinstated the December 1, 1975, divorce decree and allowed the wife 30 days to appeal.*fn1 She did appeal, and on February 2, 1977, this court affirmed. On March 15, 1977, a hearing was held by the lower court in response to another petition by appellee asking that his obligation to support his (by then, former) wife be terminated. The lower court ordered appellee to pay $40 per week support for his child, and terminated his obligation to support his former wife; this order was made retroactive to December 1, 1975, the date of the original divorce decree, with the result that for the period of 60 odd weeks, from December 1, 1975, to March 15, 1977, appellee's former wife was obliged to "remit [to appellee] all arrearages," lower court opinion at 2, at the rate of $48 per week, that is, the difference between the amount she had been receiving ($88 per week) and the amount of the new order ($40 per week). This appeal followed.
In its opinion, the lower court explained the order to terminate appellant's support retroactively as follows:
It is well settled in Pennsylvania that a decree in divorce terminates absolutely the obligation to support the wife. Under the circumstances, it has been held proper to vacate a support Order for the wife and to remit all arrearages as of the date of the divorce decree: Commonwealth ex rel. Kurniker v. Kurniker, 96 Pa. Super. 553; Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa. Super. 403, 150 A.2d 370. That is precisely what this Court did in this case by its Order of March 15, 1977. The wife contends that the Order should not have been made retroactive to December 1, 1975, because the matter was on appeal to the Superior Court, which affirmed the decree of divorce on February 2, 1977. It is difficult to see why the defendant should be penalized because the wife had appealed
[ 254 Pa. Super. Page 413]
the divorce, since the defendant was required to continue paying the original Order for more than a year after he should have received a vacated Order. The affirmance of the divorce by the Superior Court effectively breathed new life into the divorce decree and thereby made it effective as of its date, December 1, 1975. Therefore, the defendant was properly given credit for all ...