Loading...
HomeMy WebLinkAbout81-501 supportMARIA]qNE WELLS, Plaintiff, Vo LEONARD MORRIS WELLS, Defendant. ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o · No' 81-501 SUPPORT · · CIVIL ACTION- SUPPORT o : PACSES 728100106 DR 9168 IN RE: SUPPOR.T. BEFORE GUIDO, J. ORDER OF COURT AND NOW, this /O~day of AUGUST, 1998, after a hearing de novo, Plaintiff's request to make the support order retroactive to July of 1981 is DENIED. Our prior order dated June 10, 1998 shall remain in full force and effect. By the Court. Edward E. Guido, J. MARIANNE WELLS, Plaintiff, Vo LEONARD MORRIS WELLS, Defendant. - IN THE COURT OF COMMON PLEAS OF · CUMBE~~ COUNTY, PENNSYLVANIA · · No: 81-501 SUPPORT o · CIVIL ACTION- sUPPORT · · PACSES 728100106 DR 9168 IN RE: SUPPORT. BEFORE GUIDO, J. OPINION AND ORDER OF COURT On May 4, 1998 the Plaintiff filed the current complaint for the support of the parties' minor son. On June 10, 1998 this Court emered a recommended order directing the Defendant to pay $147 per month for the support of his son retroactive to May 4, 1998. The Plaintiff filed a timely appeal from the emry of the recommended order. A hearing de novo was held before this Court on July 23, 1998. At the hearing the parties agreed that the only issue to be addressed by the Court is the effective date of the order. The parties were given one week to submit legal authority in support of their respective positions. This matter is now ready for disposition. FINDINGS OF FACT I 1) The parties are the parents of Brandon Matthew Wells, bom July 11, 1981. 2) The Plaintiff originally filed a complaint for support at this term and number in July of 1981. 3) At the time the original complaint was filed, Plaintiff'lived at 1105 Oak Lane, New Cumberland, Pennsylvania. She has continued to reside at that address at all times since. 4) At the time the original complaint was filed, Plaintiff advised the Cumberland County Domestic Relations Office that Defendant rived at an address in Lehigh County. 5) The Cumberland County Domestic Relations Office filed a Reciprocal Support Action with No: 81-13 85 SUPPORT Lehigh County. 6) On August 12, 1981 the Lehigh County Domestic Relations Section advised the Cumberland County Domestic Relations Office that it was unable to locate the Defendant. 7) By letter dated August 14, 1981 Plaintiff was requested to provide the Cumberland County Domestic Relations Office with a current address or place of employmem for the Defendant. Plaintiff never responded to that letter. 8) On October 30, 1981 the Lehigh County Court of Common Pleas dismissed the Reciprocal Support Action because of its inability to locate the Defendant. A copy of the order dismissing the action was mailed to the Plaintiff on November 9, 1981. 9) By letter dated November 18, 1981 the Cumberland County Domestic Relations Office informed Plaintiff that it had located the Defendant in Virginia. It requested Plaintiff to appear to complete the necessary reciprocal forms to pursue the action in Virginia. Plaintiff never responded to that letter. 10) On December 15, 1981 the divorce action filed by Plaintiffat 1296 of 1981 was finalized,a 11) Sometime during 1985 or the first half of 1986, Plaintiff and her son visited with Defendant at his mother's residence. 12) Plaintiff knew the whereabouts of Defendant's parents at all times since 1981. 13) Plaintiff did not contact the Cumberland County Domestic Relations Office from the date she filed the original support complaint in 1981 until early 1998. 1This is relevant to the instant matter because Defendant filed an affidavit of consent to the entry of the Divorce Decree on December 3, 1981. Therefore, we conclude that Plaintiff knew of Defendant's whereabouts in December of 1981. No: 81-13 85 SUPPORT 14) On May 4, 1998 the Plaintiff filed the instant action for support. DISCUSSION, The only issue to be decided by this Court is the effective date of the support order. Plaintiff's position is that her former husband had the absolute duty to support his son over the past seventeen years. Therefore, she argues, the current support order should be made retroactive to the date the first support complaint was filed in July of 1981. For the reasons set forth below, we are compelled to deny her request. The initial action filed in 1981 was dismissed by the Lehigh County Court of Common Pleas and no appeal was taken.2 In addition, the instant action was commenced by the filing of a new support complaint on May 4, 1998. These facts are similar to those presented in Com. ex rel. Swank v. Swank,. 266 Pa. Super. 94, 403 A.2d 109 (1979). In Swank the Court held that it was appropriate to limit the retroactivity of the order to the date of the second complaint? We are well aware that there are sound policy reasons favoring retroactivity of support orders in most cases.4 See Crawford v. Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993); Sutliffv. Sutliff, 339 Pa. Super. 523,489 A. 2d 764 (1985). The policy behind the award of 2We find as a fact that Plaintiff received notice of the dismissal which was mailed to her address. We further find as a fact that Plaintiff received the letters from the Cumberland County Domestic Relations Office dated August 14, 1981 and November 18, 1981. We find her testimony to the effect that she did not receive those letters to be incredible. 3In the Swank case the two complaints were filed two years apart. In the instant case we are dealing with an even greater delay of seventeen years. 4pennsylvania Rule of Civil Procedure 1910.17(a) specifically provides that "[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise." No' 81-13 85 SUPPORT retroactive support orders was succinctly articulated by the Crawford Court as follows: Our case law provides that retroactive support is intended to 'alleviate hardship on a party who is entitled to support but who is required to proceed through the otien slow moving judicial process. Further it creates disincentive for the party liable for support to use dilatory tactics.' (citations omitted) Crawford; 429 Pa. Super. at 556-557, 633 A.2d at 163. The policy reasons for retroactivity are not present in the instant case. The delay in this action was caused solely by the Plaintiff. 5 She was informed that the various domestic relations offices could not find the Defendant, yet she did nothing to cooperate. She was informed that the Lehigh County action was dismissed, yet she did nothing. She was advised that the Cumberland County Domestic Relations Office located the Defendant in Virginia, yet she did nothing to institute a new action. She was in contact with the Defendant in December of 1981 to obtain his affidavit of consent in the divorce action. She was also in contact with the Defendant at least once in 1985 or 1986. In addition, she knew at all times where his parents rived, yet she did nothing to pursue the support action. We are mindful that Defendant's duty as a parent to support his child is "well nigh absolute." Sutliff, 339 Pa. Super. at 538, 489 A.2d at 771. However, in the case before us, the child is almost grown. Plaintiff has supported him without the help of the Defendant. If we order the support to be retroactive for seventeen years it will not go to the benefit of the child, but rather will reimburse Plaintiff' for expenses she has already paid. While we do not condone the ~In point of fact, we have no reason to believe that Defendant even knew that a support action had been instituted against him until the complaint of May 4, 1998 was filed. To make the order retroactive to 1981 may very well violate Defendant's fight to due process. See Bogan v. Smith, 144 Pa. Commw. 1, 3-4, 601 A. 2d 379, 380 (1990). No' 81-13 85 SUPPORT action of Defendant in failing to provide the financial and emotional support to which his son was entitled, neither do we condone the actions of the Plaintiff' in allowing the support action to lie dormant for almost seventeen years. Therefore, we will not alter the order previously entered on June 10, 1998. ORDER,. AND NOW, this ~ D day of AUGUST, 1998, after a hearing de novo, Plaintiff' s request to make the support order retroactive to July of 1981 is DENIED. Our prior order dated June 1 O, 1998 shall remain in full force and effect. By the Court, /s/Edward E. Guido, J.. Edward E. Guido, J.