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COMMONWEALTH PENNSYLVANIA v. RICHARD PRESSLEY (08/10/84)

filed: August 10, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD PRESSLEY, APPELLANT



No. 1544 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Family division, of Philadelphia County, Civil No. 273244, Folio No. 189471.

COUNSEL

Orest Kowalchuk, Philadelphia, for appellant.

Marvin D. Weintraub, Philadelphia, for Commonwealth, appellee.

Rowley, Hester and Roberts, JJ.

Author: Rowley

[ 331 Pa. Super. Page 45]

This is an appeal from an order of the trial court dismissing appellant's exceptions to the denial of his petition to remit support arrearages. We vacate and remand.

Appellant and his wife separated in 1970. At that time he was ordered to pay $35.00 per week for the support of his wife and two children. A final decree of divorce was subsequently entered. The parties agreed in September, 1976 to amend the support order to require appellant to pay $10.00 per week support for each child and nothing for his ex-wife. Appellant contends that he lived in the vicinity of his ex-wife and children and following the amendment of the support order he began to make support payments directly to her rather than to the Domestic Relations Section of the Family Division of the Philadelphia County Court of Common Pleas.

In September, 1977, almost a year after the support order was amended and appellant began to pay support directly to his ex-wife, she applied for public assistance. At that time, she was required to execute an assignment of her right to receive support from appellant to the Commonwealth of Pennsylvania, Department of Public Welfare. However, according to appellant, he continued to make support payments directly to his ex-wife. In June, 1981, the Department of Public Welfare (DPW) filed a petition to hold appellant in contempt for failing to make the payments ordered in September, 1976. The DPW claimed appellant owed $8,265.00 in arrearages at that time. Through counsel, appellant apparently responded by filing a cross-petition to remit arrearages. This cross-petition has not been forwarded to us with the record in this case.

[ 331 Pa. Super. Page 46]

On November 23, 1981, the court held a hearing that was almost entirely devoted to oral argument by counsel. At the conclusion of the hearing, the court denied appellant's motion to remit arrearages and granted that of DPW. The court concluded that, at the time of the hearing, appellant owed arrearages of $8,685.00 and ordered him to pay the arrearages at the rate of $10.00 per week until he could find employment. Also, because appellant's ex-wife is now living in Alabama, the court ordered that the duty to pay support was suspended. Exceptions were timely filed pursuant to Pa.R.C.P. No. 1910.12(e). See also Pa.R.C.P. No. 1910.19(b). The exceptions were denied and a final order entered on April 19, 1982. This appeal followed.

In its opinion pursuant to Pa.R.A.P. 1925, the trial court stated that it felt bound by this Court's decision in Commonwealth of Pennsylvania, Department of Public Welfare v. Alvin, 278 Pa. Super. 64, 419 A.2d 1358 (1980). However, in that case, the ex-husband "was familiar with the required procedure" of making all support payments into court. Id., 278 Pa. Super. at 66, 419 A.2d at 1359. Indeed, the only payment which the ex-husband in Alvin did not make into court was a single $1,000.00 payment for which he sought credit against the arrearages. The record in the case before us does not disclose when, if ever, appellant was informed that he was required to make his payments under the support order to the Domestic Relations Section.*fn1 Nor does it affirmatively appear that appellant was informed of the consequences of failing to make payment to the Domestic Relations Section, i.e., being forced to pay twice. Alvin is thus inapposite.

We also note that there is no indication in the record that appellant was notified of the ...


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