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MARY A. FLORY v. PAUL THOMAS FLORY (06/12/87)

filed: June 12, 1987.

MARY A. FLORY, APPELLANT,
v.
PAUL THOMAS FLORY, APPELLEE



Appeal from the Order entered on April 29, 1986, in the Court of Common Pleas of Lancaster County, Civil Division, at No. 109 of 1983.

COUNSEL

Darrell N. Van Ormer, Jr., Elizabethtown, for appellant.

David E. Wagenseller, III, Lancaster, for appellee.

Beck, Hester and Roberts,*fn* JJ.

Author: Beck

[ 364 Pa. Super. Page 69]

This appeal presents the issue of whether the income from a child's guardianship account, established in settlement of a tort claim of the child, can be used to meet his support needs. We hold that such use of the income is improper unless the court determines that his parents are unable to provide for his support out of their own resources.

Plaintiff-appellant, Mary A. Flory, and defendant-appellee, Paul Thomas Flory, were married on August 30, 1970. Four children were born during the marriage: Paul, age 14; Joseph, age 12; Margaret, age 10; and Jacob, age 8. The parties separated in February of 1981. Appellant subsequently filed a complaint for support, and on March 25, 1983 an order was entered directing appellee to pay $80 a week support for the four children.

The parties were divorced on January 27, 1984, at which time an amended order was entered directing appellee to pay $60 a week for the support of Paul, Margaret, and Jacob. Support for Joseph was not provided.

On July 18, 1985, appellee filed a petition to modify, seeking credit for six weeks' support for the period in the summer when he had temporary physical custody of the children. On September 11, 1985, appellant petitioned for an increase in the amount of the support order, alleging changed circumstances.

A conference was held before a domestic relations hearing officer on September 17, 1985. No agreement was reached, and the case was listed as complex. Following a hearing on April 7, 1986, the trial court dismissed both petitions for modification. This timely appeal by Mrs. Flory followed.

Appellant first contends that the trial court erred in allowing appellee's support obligation to one of his four children, Joseph, to be satisfied from a guardianship account established in settlement of Joseph's personal injury tort claim without first engaging in a searching inquiry into

[ 364 Pa. Super. Page 70]

    appellee's ability to support Joseph out of his own ...


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