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COMMONWEALTH PENNSYLVANIA EX REL. ELIZABETH BELIN v. STEPHEN F. BELIN (08/10/79)

August 10, 1979

COMMONWEALTH OF PENNSYLVANIA EX REL. ELIZABETH BELIN
v.
STEPHEN F. BELIN, APPELLANT



No. 1606 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Domestic Relations Branch D.R. No. 239033

COUNSEL

Mary B. Stein, Philadelphia, for appellant.

Joseph L. Fox, Philadelphia, for appellee.

Price, Dowling and Gates, JJ.*fn*

Author: Gates

[ 268 Pa. Super. Page 429]

This is an appeal from an order reducing arrears in support to judgment and dismissing appellant's petition to vacate and remit arrearages. We vacate the order and remand for an evidentiary hearing.

On January 5, 1964 appellee-wife petitioned for support. The docket discloses that on April 21, 1964 the petition was dismissed. Curiously, an order of eleven dollars ($11) per week was imposed by the court. The next docket entry reflects an attachment filed July 8, 1964 followed by an order on August 12, 1964 directing appellant to pay regularly and reduce arrears.

Nearly thirteen years later, on May 19, 1977, appellee filed a petition to reduce arrears to a judgment. A hearing was scheduled for October 4, 1977. On that date the judge entered an order, without hearing testimony, reducing the arrears to a judgment in the amount of six thousand seven hundred four dollars ($6,704.00).

On October 8, 1977 appellant-husband filed a petition for reconsideration of the prior order. The petition was granted, the judgment vacated and an evidentiary hearing ordered, but never held.

The matter was listed again before the same judge. On March 8, 1978 counsel for appellant appeared and requested

[ 268 Pa. Super. Page 430]

    a continuance due to the avowed, life endangering illness of appellant. The motion was granted and the matter rescheduled for April 24, 1978 at which time appellant appeared and was ready to produce evidence. The posture of the record before the court at the time was the wife's petition to reduce arrears to judgment and the husband's petition to vacate and remit arrears. Without an evidentiary hearing, the court entered an order dismissing the appellant's petition to remit and the arrears were reduced to judgment in the amount of seven thousand twenty-three dollars ($7,023.00). This appeal followed.

A hearing without being heard is no hearing. The record of the proceedings before the judge on April 24, 1978 discloses that appellant's counsel requested permission to present testimony in support of his petition to vacate and remit ...


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