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COMMONWEALTH PENNSYLVANIA EX REL. HELENE SMITH v. RICHARD SMITH (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. HELENE SMITH
v.
RICHARD SMITH, APPELLANT



No. 925 October Term 1977, Appeal from Judgment and Order of the Court of Common Pleas, Phila. County, Family Court Div., entered in the Matter, D.R. No. 269219.

COUNSEL

Ernest E. Jones, Philadelphia, for appellant.

Elliot M. Drexler, Warminster, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 260 Pa. Super. Page 205]

This is an appeal from an order attaching appellant's wages in the amount of $20 per week on account of support arrearages payable to appellee, who is appellant's former wife.

The parties were married in June 1967. On July 24, 1972, while the parties were separated, an order was entered awarding appellee support in the amount of $15 per week. Appellant never made any payments in compliance with this order. On November 17, 1975, the order was vacated as of May 22, 1975, on which date the parties had been divorced, and the arrearages, which were $2,165, were reduced to judgment. On July 27, 1976, appellee sought to recover the arrearages by filing a petition to attach appellant's wages. It is from the order granting this petition that appellant appeals.

-1-

The first question is whether appellee's right to recover the arrearages is affected by the fact that she and appellant have been divorced.

[ 260 Pa. Super. Page 206]

"The purpose of support is to provide a dependent spouse, with a reasonable living allowance. Commonwealth ex rel. Bishop v. Bishop, 234 Pa. Super. 600, 341 A.2d 153 (1975); Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Super. 541, 185 A.2d 822 (1974). The obligation to provide support is imposed as an incident of the marital relationship which is conceived of as a unity. Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa. Super. 593, 307 A.2d 442 (1973); Commonwealth v. Berfield, 160 Pa. Super. 438, 51 A.2d 523 (1974). When that unity is severed the obligations incident to it cease." Hellman v. Hellman, 246 Pa. Super. 536, 547, 371 A.2d 964, 969-70 (1977) (dissenting opinion). Accordingly, upon the divorce, appellant's obligation to support appellee ceased. Commonwealth ex rel. Jones v. Jones, 216 Pa. Super. 1, 260 A.2d 809 (1969). However, "[t]he duties, rights and claims accruing to [the husband] in pursuance of his marriage which ceased and determined with the decree of divorce, did not apply to his existing financial obligations that were legally fixed prior thereto." Commonwealth, to use, v. Foltz, 50 Pa. Super. 576, 579 (1912). It is therefore clear that a court may compel compliance with a support order, including an order for the payment of arrearages, after the obligation of support has ceased, as long as the order was entered before the divorce. Commonwealth v. Cieply, 162 Pa. Super. 346, 57 A.2d 910 (1948).

-2-

Appellant concedes that pursuant to the Civil Procedural Support Law, Act of July 13, 1953, P.L. 431, § 9; July 3, 1957, P.L. 452, § 1, 62 P.S. § 2043.39(c), wages of "any person owing a duty of support may be attached . . .". He contends, however, that upon being divorced he ceased being a "person owing a duty of support". Therefore, appellant reasons, attachment is no longer available to appellee, and to recover the arrearages she must ...


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