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COMMONWEALTH PENNSYLVANIA EX REL. BETTY JANE KUNKIN v. ALAN BRUCK. APPEAL BETTY JANE KUNKIN. COMMONWEALTH PENNSYLVANIA EX REL. BETTY JANE KUNKIN V. ALAN BRUCK (04/02/82)

filed: April 2, 1982.

COMMONWEALTH OF PENNSYLVANIA EX REL. BETTY JANE KUNKIN
v.
ALAN BRUCK. APPEAL OF BETTY JANE KUNKIN. COMMONWEALTH OF PENNSYLVANIA EX REL. BETTY JANE KUNKIN V. ALAN BRUCK, APPELLANT



No. 287 October Term, 1979, No. 353 October Term, 1979, On Appeal from Order of the Court of Common Pleas Montgomery County, Criminal Division, at No. 1027 April Term 1973

COUNSEL

Nathan L. Posner, Philadelphia, for Betty Jane Kunkin.

Parker H. Wilson, Norristown, for Alan Bruck.

Spaeth, Cavanaugh and O'Kicki,*fn* JJ. Spaeth, J., concurs in the result. Cavanaugh, J., joins.

Author: O'kicki

[ 297 Pa. Super. Page 411]

This appeal arises from an Order of the Court of Common Pleas of Montgomery County. Appellant and appellee were married on June 25, 1961. Two children were born, Christopher Bruck born September 2, 1963 and Matthew Bruck born February 26, 1967. The parties separated in 1970 and in 1973 appellant sued for support on behalf of herself and

[ 297 Pa. Super. Page 412]

    her two children. That petition was withdrawn upon the execution of a written property settlement agreement dated October 16, 1973, which dealt with support and other matters. The support proceeding was not terminated. Thereafter, the parties were divorced in March, 1974. Following the divorce, appellant married Leonard Kunkin. The two children reside with their mother, the appellant.

In 1978, appellant renewed her petition for a support order for the two boys. At the time this new complaint for support was filed, appellee was complying with the parties' written settlement agreement by paying the sum of $165.00 per week to appellant and making additional miscellaneous payments as required by the agreement. Hearings were duly held on this complaint and on December 5, 1978, the Court below entered an order directing appellant to pay the sum of $250.00 per week for "the support of his two children . . ." Continuing, the Court directed that the sum is to be "paid in accordance with the provisions of paragraph 17 of the Separation Agreement." The Court, after consultation with counsel for both parties, vacated this order on January 4, 1979, and entered an amended order wherein appellee was again directed to pay $250.00 for support; however, reference to his two children was omitted, and the direct reference to paragraph 17 was omitted. In its place, the Court now directed that "The said sum is to be paid in accordance with the provisions of the agreement between the parties dated October 16, 1973."

Appellant appealed on behalf of her two sons. She challenges that part of the Trial Court's order which directs payment in accordance with the agreement and the omission of an order specifying that appellee's payments are for the support of the two minor boys. The appellee has, thereafter, filed a cross-appeal.

Appellant objects to the Trial Court's entry of an amended order contending that it had no authority to vacate its original order. Appellee contends, on the other hand, that this objection cannot be considered by this Court because she waived it by not raising it in the statement of

[ 297 Pa. Super. Page 413]

    matters objected to, filed pursuant to Court direction and Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. We find ...


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