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MARY LOU ROSENBERRY v. EDGAR J. ROSENBERRY (07/12/78)

decided: July 12, 1978.

MARY LOU ROSENBERRY
v.
EDGAR J. ROSENBERRY, APPELLANT



No. 1463 October Term, 1977, Appeal from the Order Entered March 25, 1977 of the Court of Common Pleas of Cumberland County at No. 7 Equity 1975, Civil Action, Equity.

COUNSEL

David C. Cleaver, Chambersburg, with him Robert C. Schollaert, Chambersburg, for appellant.

William R. Mark, Shippensburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 256 Pa. Super. Page 239]

Appellant contends that the lower court had no authority to enter an order against him for the support of his three children effective from the date that appellee filed her equity complaint. We agree, vacate the order of the lower court, and remand for proceedings consistent with this opinion.

On February 25, 1975, appellee filed a complaint in equity in the Cumberland County Court of Common Pleas. The complaint charged that on or about May 1, 1974, appellant, without reasonable cause, deserted appellee and the parties' three children. Since the desertion, appellant had neglected to provide suitable maintenance for appellee and the children. The complaint also alleged that appellant owned personal and real property in Cumberland County. For her relief, appellee requested the court to enter an appropriate support order for herself and her three children and also asked the court to order appellant to reimburse appellee for funds expended from her separate estate in supporting her family during her husband's desertion. In order to assure the availability of these remedies, appellee requested the lower court to seize appellant's varied property interests in Cumberland County and to enjoin appellant from alienating, encumbering, or assigning these interests.

On March 18, 1975, appellant filed preliminary objections to the complaint. On April 16, 1975, the court dismissed these objections and allowed appellee 20 days to file an

[ 256 Pa. Super. Page 240]

    amended complaint if she so desired. On May 1, 1975, appellee filed an amended complaint. While the amended complaint replicated almost all the material averments of the original complaint, appellee specifically averred that she sought relief pursuant to sections 1 and 2 of the Act of 1907.*fn1 Pursuant to this Act, she again requested the entry of an appropriate support order plus reimbursement for past expenditures for support from her separate estate.

On May 24, 1976,*fn2 appellant filed an answer to the amended complaint in which he denied that he deserted his family without cause, that he did not adequately support his family, and that he had any property in Cumberland County. In New Matter, appellant pleaded a July 7, 1975 Florida divorce decree which terminated any obligation he might have to pay support on appellee's behalf.

On June 29, 1976, the lower court conducted a hearing on appellee's complaint.*fn3 On August 25, 1976, the lower court entered an order which directed appellant to pay $1000 per month for the support of his three minor children. The court specified that the order became effective on February 25, 1975, the date appellee filed her first complaint. On September 14, 1976, appellant filed exceptions to the court's order challenging the amount of the award and the propriety of relating the award back to the date appellee filed her complaint. On March 28, 1977, the Cumberland County Court of Common ...


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