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COMMONWEALTH EX REL. JANET E. SWANK v. DANIEL W. SWANK (05/10/79)

decided: May 10, 1979.

COMMONWEALTH EX REL. JANET E. SWANK, APPELLANT,
v.
DANIEL W. SWANK



No. 210 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Somerset County at No. 101 Domestic 1974.

COUNSEL

Nathaniel A. Barbera, Somerset, for appellant.

William L. Kimmel, Somerset, for appellee.

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

Author: Van Der Voort

[ 266 Pa. Super. Page 95]

This is a civil support proceeding. The relator-appellant is the mother of four children, only two of whom are now under 18 years of age. Mother and father, appellee, are divorced. The father has remarried and has one child from his second marriage.

The support order appealed from is dated August 31, 1977, was amended on September 6, 1977, and requires payments of $500.00 per month, retroactive to February 19, 1976 for

[ 266 Pa. Super. Page 96]

    the support of two children, born respectively November 19, 1959 and May 5, 1965.

Appellant raises three issues:

1. The lower court abused its discretion, as a matter of law, by awarding only $500.00 per month in view of the father's taxable income of $141,000 in 1974 and $288,000 in 1975;

2. The lower court erred by failing to rule on a Motion for Sanctions filed by the mother, and by deciding the matter contrary to the mother's contentions; and

3. The lower court erred in refusing to make the support order retroactive to August 27, 1974 when a previous complaint had been filed, rather than February 19, 1976, when the most recent complaint was filed, asking for an increased order.

We dispose first of the third issue, which is retroactivity. Both parties cite Commonwealth ex rel. Bishop v. Bishop, 234 Pa. Super. 600, 341 A.2d 153 (1975), a case in which the court made a support order retroactive to the date of filing of the complaint. The same procedure was followed in this present case, but the appellant mother asks that the order here appealed from be made retroactive to an earlier complaint filed in August, 1974 because, she says, the husband gave misleading testimony in 1974 as to his income. No appeal was ever taken from the lower court's denial of the August, 1974 complaint. Further, the appellant instituted this action by a new complaint in 1976, rather than seeking to have the 1974 action reactivated. In view of these facts, and in the absence of any other compelling reasons having been presented, we cannot find that the lower court abused its discretion in refusing to extend retroactivity beyond February 19, 1976.

The second argument raised by appellant is that the lower court improperly suspended action on the Motion for Sanctions.

Judge Coffroth's Opinion dated August 31, 1977 sets forth the following resume of the proceedings before the lower court:

[ 266 Pa. Super. Page 97]

"October 30, 1969: Support order for $150.00 a month for four

     children.

June 17, 1974: Complaint of plaintiff mother ...


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