No. 3098 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Cumberland County, Nos. 118 Support 1975 and 34 Civil 1980.
Michael R. Rundle, Carlisle, for appellant.
Carl A. Ammerman, Mechanicsburg, for participating party.
Brosky, Wieand and Beck, JJ. Beck, J., concurs in the result.
[ 311 Pa. Super. Page 509]
David R. Vogelsong has become totally disabled since he was ordered to pay $150 per week for the support of a wife and child. He appeals from the trial court's order refusing,
[ 311 Pa. Super. Page 510]
nevertheless, to modify the support order and remit arrearages. We reverse.
The initial order of support was entered following a hearing on April 29, 1975, at a time when appellant owned, managed and was actively engaged in a water conditioning business in Cumberland County. On June 17, 1975, appellant was declared permanently and totally disabled by the Social Security Administration because of arteriosclerotic coronary disease and diabetes mellitus. Both conditions have become more acute as time has passed, and appellant has not been gainfully employed since June, 1975. On August 5, 1975, appellant responded to a contempt petition which prompted the court, after hearing, to make the following disposition:
We were going to end the Order because of his disability but the prosecution has made a note of the feasible assets, that aren't feasible to the Court. I'm going to let the arrearages accrue and we can enter judgment on the arrearages any time and proceed against any assets we can find. Go ahead and issue execution, but, with his health, I can't enforce an Order. I can't put him in jail and he has no income as far as I can see. So, I'm going to continue the hearing and allow the arrearages to accrue.*fn1
On January 3, 1980, the appellee, Jane Vogelsong, caused judgment to be entered against appellant for arrearages in the amount of $34,200. The judgment was procedurally defective, however, and was subsequently stricken. Appellant then petitioned the court to modify the order, both prospectively and retroactively, and to remit all arrearages in excess of social security payments which had been paid directly to the appellee. A hearing was held, and the court entered an order as follows:
AND NOW, this 15th day of October, 1981, for the reasons appearing in the opinion filed this date, the petitioner's motion to ...