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DENA LYNN F. v. HARVEY H. F. (11/07/80)

filed: November 7, 1980.

DENA LYNN F.
v.
HARVEY H. F., APPELLANT*FN*



Nos. 272 April Term, 1979, 934 April Term, 1978, Appeals from the Orders of the Court of Common Pleas of McKean County, Pennsylvania, at No. 335 June Term, 1977, Civil Action--Law.

COUNSEL

Joanne Ross Wilder, Pittsburgh, for appellant.

Murray R. Garber, Bradford, for appellee.

Brosky, Watkins and Montgomery, JJ.

Author: Brosky

[ 278 Pa. Super. Page 97]

This court has recently been confronted with an expedited appeal from an order of court regarding the custody of a male infant, visitation rights of the non-custodial parent, payment of support and the payment of attorney fees. This proceeding has been winding its way through our courts for considerable time. However, the relevant determinations to our responsibility today are few.

The trial court ordered Harvey F. to make payments for the support of his son, commensurate with his son's needs, of one hundred fifty dollars ($150.00) every two weeks. Subsequently, this court granted a partial supersedeas of the lower court's order -- which required Harvey F. only to visit his son while in his wife's home -- permitting him to have partial custody of his child outside the home of the mother. Appellee concedes that partial custody outside the mother's home should be permitted by final order of this court.

The record amply discloses that since the order at trial court was entered, the housing and financial circumstances of the parties have changed. It is a settled principle of family law that support payments may not be punitive or confiscatory. Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 323 A.2d 766 (1974). The facts in this case require that we remand, without prejudice to either

[ 278 Pa. Super. Page 98]

    party, this question to the trial court to make a new determination reflecting the changed circumstances as to the financial status of the parties.

Next, appellant seeks a resolution of the dispute as to whether counsel fees were appropriately charged him by the court. Pennsylvania appellate courts have held that:

It is the general rule in Pennsylvania that a court is powerless to grant counsel feels in the absence of statutory authorization to the contrary or contractual obligation.

Drummund v. Drummund, 414 Pa. 548, 200 A.2d 887 (1964).*fn1 However, this rule is not analytically clear when we consider a case involving the support or visitation of children. After all, a dispute over support or visitation focuses on the "best interest of the child." The payment of attorney's fees, therefore, can be construed as a necessary arising out of the parent-child relationship and the duty to support. Additionally, policy requires us to encourage litigation which will assure that children are supported. The litigation was clearly for the benefit of the child and was precipitated by the action of the parents -- not the child. The court determined the father was to make payments pursuant to his duty to support his son. Therefore, Harvey F. was ...


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