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COMMONWEALTH PENNSYLVANIA EX REL. ANNIE P. NIXON v. EARL S. NIXON (03/31/83)

filed: March 31, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. ANNIE P. NIXON
v.
EARL S. NIXON, SR., APPELLANT



No. 1820 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 214699.

COUNSEL

Claire D. Newman, Philadelphia, for appellant.

William F. Coyle, Philadelphia, for appellee.

David Carl Mullins, Philadelphia, for Paul Nixon, participating party.

Wieand, Beck and Montemuro, JJ.

Author: Wieand

[ 312 Pa. Super. Page 316]

The appeal in the instant case is from a multi-faceted order entered in a support action. Unfortunately, the record is inadequate to permit appellate review.

The facts which are ascertainable from the record disclose that Earl Nixon, Sr., appellant, and Annie P. Nixon, appellee, were married in Philadelphia in 1953. A son, Earl, Jr., was born on October 20, 1953. The marriage fell upon hard times, and the parties separated in 1957. On August 12, 1959, an agreed support order was entered which directed appellant to pay $60 bi-weekly for the support of his wife and son. Later in 1959, appellee moved with her son to Houston, Texas, where she continues to reside. Some time after Earl, Jr. had attained his 18th birthday, appellant unilaterally discontinued making payments of support.*fn1 On December 13, 1967, appellee gave birth to a second son in Houston. She named him Paul Vance Nixon. She did not immediately ask the court to increase the order to include support for the new child. However, at some time thereafter, which cannot be ascertained precisely from the record, appellee filed a request for an increase in the monthly allotment which she had been receiving from the Veterans' Administration. This appears to have been filed in 1971, for in January, 1972, appellant acknowledged in writing that Paul was his dependent. The record does not disclose, however, whether the request for increase was ever granted.

[ 312 Pa. Super. Page 317]

In 1975, appellee filed a new request that the Veterans' Administration find Paul to be appellant's dependent and increase the allotment which appellee was receiving. Appellant contested appellee's request and contended that Paul was not his child. The Veterans' Administration, relying upon the presumption that a child born during wedlock is legitimate, increased appellee's allotment. Appellant did not appeal.

On September 26, 1977, appellee filed a petition in the courts of Philadelphia to increase the order of support. When her counsel discovered that Paul had never been included in the order, he filed an amended petition to include him in the order of support. He also filed a petition to have arrearages under the prior order reduced to judgment. On June 8, 1978, after a hearing on the petition to reduce arrearages to judgment, the Honorable Gregory Lagakos entered an order granting appellant a credit against arrearages of $6,070 without prejudice to his right to claim additional credits.*fn2

The petition for increase was heard by the Honorable Edward E. Rosenberg, who took testimony on the issues of paternity, support and arrearages. Blood grouping tests demonstrated conclusively that appellant was not the natural father of Paul. Nevertheless, the court found that appellant was a parent by estoppel. The court also concluded that the results of the blood test could not be used to show that appellee had been guilty of adultery. Therefore, the following order was entered:

AND NOW, this 30th day of July 1979, after hearing and testimony, the following order is made:

(1) The husband shall be required to make payments through the Court for the support of his wife and minor child, Paul in the sum of $65.00 a week thereby amending the order of August 12, 1959. The ...


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