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GAIL FORTUNE/FORSYTHE v. HERMAN FORTUNE (04/28/86)

filed: April 28, 1986.

GAIL FORTUNE/FORSYTHE
v.
HERMAN FORTUNE, APPELLANT. GAIL FORSYTHE, APPELLANT, V. HERMAN FORTUNE



Appeal from the Order entered on February 14, 1984, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 9-05732. Appeal from the Order entered on January 4, 1985, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 9-05732.

COUNSEL

Judy F. Berkman, Philadelphia, for appellant (at 848) and appellee (at 318).

Harry Frank, Philadelphia, for appellant (at 318) and appellee (at 848).

Brosky, McEwen and Hester, JJ.

Author: Hester

[ 352 Pa. Super. Page 550]

These are consolidated appeals concerning child support. The first was filed by Herman Fortune from an order denying his petition and amended petition for reconsideration. The other was filed by Gail Forsythe (formerly Fortune) from an order suspending support. Educational expenses for the parties' son, Jonathan, are at issue.

Fortune and Forsythe executed a marital settlement agreement on January 23, 1976, to settle child custody, support, alimony, distribution of marital property and other matters germane to the dissolution of their marriage. Forsythe was awarded full custody of the parties' minor children, Jonathan and Vivian, subject to Fortune's partial custody rights. It was further agreed that Fortune would pay $50.00 per week for the support of Jonathan and $35.00 per week for Vivian. The parties were divorced in 1976.

In March, 1980, Fortune was ordered to pay $130.00 per week for the support of both children. By order dated May

[ 352 Pa. Super. Page 55126]

, 1982, support was reduced to $60.00 per week for Vivian and suspended for Jonathan. Jonathan was a freshman at the University of Tennessee during the 1981-1982 academic year, and it was held that Fortune was not obligated to contribute to educational expenses. The May, 1982 order was retroactive to May, 1981; therefore, Fortune was awarded a credit for support paid from May, 1981 to May, 1982. The May 26, 1982 order was not appealed.

Pursuant to Forsythe's petition to modify support, an order of October 19, 1983, continued support of $60.00 per week for Vivian and reinstated support for Jonathan in the same amount. As this order was retroactive to May, 1981, it in effect overruled the May, 1982 order.

Thereafter, Fortune filed a petition and amended petition for reconsideration. Following a hearing, both petitions were dismissed by order dated February 14, 1984. Fortune filed an appeal from that order which is the first of the appeals consolidated herein.

In October, 1984, while the first of these appeals was pending, Fortune filed a petition to vacate support for Jonathan. By order dated January 4, 1985, support for Jonathan was suspended and support of $60.00 per week was continued for Vivian. Forsythe's appeal from the January, 1985 order is the second of these consolidated appeals.

We are confronted with both procedural and substantive issues. We must first determine whether the order denying Fortune's petitions for reconsideration is appealable.

In Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977), the plaintiff bank was awarded a summary judgment. When the defendant's petition for reconsideration of the summary judgment was denied, he appealed. The appeal was quashed as it was not filed within thirty days of the summary judgment. It was of no consequence that the appeal was timely filed from the order dismissing ...


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