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NANCY E. JOHNSON v. WILLIAM R. JOHNSON (05/09/79)

SUPERIOR COURT OF PENNSYLVANIA


May 9, 1979

NANCY E. JOHNSON, APPELLEE
v.
WILLIAM R. JOHNSON, APPELLANT

Nos. 133, 134 March Term, 1978, Appeals from the Orders of the Court of Common Pleas, Civil Action, Law, Adams County, at DR-88-74 and No. 412 February Term, 1977, respectively.

Before Van der Voort, Watkins and Lipez, JJ.

Per Curiam:

Orders Affirmed.

MEMORANDUM OPINION:

These appeals arise out of hearings and orders by the court below in bitter and protracted litigation relating to domestic difficulties. We are of the opinion that the court below properly decided these matters and hence affirm.

There are two appeals. The one to No. 134 March Term 1978 is from a refusal by the court below to modify a support order; and the other to No. 133 March Term, 1978 is from an adjudication of contempt.*fn1 The litigation is based on an order on the defendant by the court below for the support of the wife and child in the sum of $550 per month entered on November 6, 1974. That order was appealed to this court and was affirmed in a Per Curiam Order on October 9, 1975. See 344 A.2d 912. Thereafter the court below, following a hearing, wherein the wife requested an increase and the husband a decrease, did on November 10, 1977, reduce the order to $500 per month. No appeal was taken.

On January 5, 1978, the wife filed a petition to show cause why the defendant, who was then in arrears $4050, should not be held in contempt. Defendant cross-filed by again petitioning to modify and reduce. After a hearing on May 3, 1978, the court denied husband's petition to reduce and ordered the husband-defendant to appear in open court on June 6, 1978. On that date the defendant was found in willful contempt and was committed to the county jail for a period not exceeding five months or until such time as he purged himself by either bringing his support order current or by agreeing to have a master appointee to sell property owned by entireties, from which the arrearage was to be paid out of his share of the proceeds.

We agree with the court below that the order of November 10, 1977, was res judicata as to all the matters which might have been litigated in the support order to that date. Commonwealth v. De Medeo, 210 Pa. Super. 520, 233 A.2d 609 (1957). We further agree: that the testimony failed to show the necessary material and substantial change in circumstances which would have warranted a reduction of the amount of the order; and that he was properly found in willful contempt.

While somewhat unusual, we are of the opinion that the order of the court below dated June 6, 1978, committing him to jail and designating the manner in which he could purge himself was proper. The conditions for purging gave him two options: payment; and if unable to do that, then to do what was within his ability to do, namely, agreeing to the appointment of a master to sell the entireties property. See Barrett v. Barrett, 470 Pa. 253 (1977). As such he "carries the keys to his prison in his own pocket." Simmons v. Simmons, 232 Pa. Super 365 (1975).

The legislature has long taken a special interest in providing legislation for the enforcement of support for wives and children and has given the courts broad equitable powers looking towards that end. See 48 P.S. § 131 et seq. In particular it has made provisions for enforcement of support orders against real estate held by entireties. See 48 P.S. § 137. And our case law also holds that a husband's interest in property owned by entireties is subject to enforcement for payment of support orders. See Crane v. Crane, 373 Pa. 1 (1955); Commonwealth ex rel. Gilman v. Gilman, 428 Pa. 387 (1967). The court below therefore properly exercised its power by compelling the husband to agree to do what it could order to be done by other proceedings.

The appeals are dismissed. The orders of the lower court are affirmed and the several proceedings herein are remanded to the court below for the enforcement of its orders.


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