Opinion
June 13, 1960.
September 16, 1960.
Appeals — Nonsupport proceeding — Summary proceeding — Finality of order of hearing judge — Authority of court in banc to hear exceptions — Evidence — Discretion of hearing judge — Appellate review — Act of June 24, 1939, P.L. 872, § 733.
1. In a nonsupport proceeding under the Act of June 24, 1939, P.L. 872, § 733, an appeal to the Superior Court is from the final support order of the hearing judge; in such case, the court in banc does not have authority to hear exceptions, to modify the final order of the hearing judge, and to enter its own order.
2. Under the Act of 1939, an action for nonsupport is a summary proceeding in the court of quarter sessions.
3. A support order entered by a hearing judge under the Act of 1939 is final in the sense that it stands unless appealed from or until the parties show changed conditions justifying modification of the order.
4. Commonwealth v. Henderson, 170 Pa. Super. 559, discussed.
5. In nonsupport cases, the duty of the appellate court is limited to determine whether there is evidence to support the order of the hearing judge, and whether there has been an abuse of discretion.
6. In a nonsupport proceeding, the court is not restricted to the husband's actual earnings, but may consider his earning power, and the extent of his property and other financial resources.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS, and MONTGOMERY, JJ.
Appeal, No. 139, Oct. T., 1960, from order of Court of Quarter Sessions of Montgomery County, June T., 1953, No. 345, in case of Commonwealth of Pennsylvania v. D. Paul McAlaine. Order of court in banc vacated and order of hearing judge reinstated.
Proceeding upon petition of wife for increase in support order. Before GERBER, J.
Order entered increasing weekly support for wife and minor children; defendant's exceptions to support order sustained in part by court in banc, and amended order entered, opinion by FORREST, J. Petitioner appealed.
Jerome H. Harwitz, with him Smillie, Bean, Davis Tredinnick, for appellant.
H. Lester Haws, with him Haws Burke, for appellee.
Argued June 13, 1960.
This is an appeal by the appellant-wife from an order of the Court of Quarter Sessions of Montgomery County, sitting in banc. Exceptions of the defendant-husband to an order of support entered by Judge GERBER were sustained. The order of the hearing judge was vacated and an order of support for a reduced amount was made effective retroactively to the date of the original order.
On appeal the wife asserts, inter alia, that the support order of the hearing judge dated September 10, 1959, was final for purposes of appeal to this Court, and that the court in banc had no authority to review this final support order of the hearing judge on exceptions filed by the husband. It is asserted that the husband's only remedy was to appeal the final order of the hearing judge to this Court. After a careful consideration of the matter we are of the opinion that there is no authority for the procedure followed by the court in banc; its order is invalid, and the order of the hearing judge will be reinstated. The order to which defendant-husband took exceptions before the court in banc was issued under the authority of the Act of June 24, 1939, P.L. 872, § 733, 18 Pa.C.S.A. § 4733, which provides in part as follows: "The said court, after hearing in a summary proceeding, may order the person against whom complaint has been made . . . to pay such sum as said court shall think reasonable and proper . . ." It would seem, under the clear and explicit language of this section, that an action for nonsupport is a summary proceeding in the court of quarter sessions.
The order of a hearing judge in a support proceeding, under section 733, 18 Pa.C.S.A. § 4733, is not final in the sense that it may not be changed, as a judgment at law. Thus orders in support cases have not been regarded as final as they may be increased, reduced, or vacated where the conditions of the parties change. Com. ex rel. Barnes v. Barnes, 151 Pa. Super. 202, 203, 30 A.2d 437; Act of June 19, 1939, P.L. 440, 17 Pa.C.S.A. § 263. On the other hand, a support order entered by a hearing judge is final in the sense that it stands unless appealed from or until the parties show changed conditions justifying modification of the order. Com. ex rel. Kozlowski v. Kozlowski, 176 Pa. Super. 24, 26, 106 A.2d 676. Support proceedings being summary in nature, our statement in Pittsburgh v. Ruffner, 134 Pa. Super. 192, 196, 4 A.2d 224, involving a violation of a city ordinance pertaining to peddling, is applicable. We said (page 196 of 134 Pa. Super., page 226 of 4 A.2d): "Where appeals have been allowed from summary convictions pursuant to Art. V, sec. 14 of our Constitution . . ., the judgment entered by the judge of the court of quarter sessions . . ., hearing the appeal de novo without a jury, is the final judgment from which an appeal must be taken within the time fixed by law, . . . It has never been the practice to have such judgments reviewed by the court in banc before taking an appeal, as in the ordinary trial of civil issues." See, also, Com. v. DeBaldo, 169 Pa. Super. 363, 365, 82 A.2d 578.
In Com. v. Ochs, 6 Chester 27 (1953), Judge HARVEY held that under section 733, 18 Pa.C.S.A. § 4733, a party aggrieved has no right to file exceptions to the final order of the hearing judge in a support proceeding to be heard by the court in banc, and he applied the analogy of appeals to the court of quarter sessions in summary convictions. On the other hand, the practice of filing exceptions to the order of the hearing judge in support cases which are passed upon by the court in banc has been approved as proper in Montgomery County. Com. v. Yoh, 71 Montg. 20 (1953); Com. v. Brooks, 76 Montg. 278 (1960). Our decision in Com. v. Henderson, 170 Pa. Super. 559, 564, 87 A.2d 797, relied upon in Com. v. Yoh, supra, 71 Montg. 20, cannot be construed as approval of the practice of having the court in banc pass upon exceptions to orders of the hearing judge in support cases, since the issue now before us was not raised there and was therefore not considered by this Court.
We find no basis in the case before us for supplemental proceedings in the form of exceptions to be passed upon by the court in banc. The appeal to this Court is from the final support order of the hearing judge with no intervention of a court in banc. Moreover, the rule has often been stated that a judge who hears and sees the witnesses in a support case is in a better position than the appellate court to decide the case on its merits. Com. ex rel. Pinkenson v. Pinkenson, 162 Pa. Super. 227, 228, 57 A.2d 720. Our duty is limited to determine whether there is evidence to support the order of the hearing judge, and whether there has been an abuse of discretion. Com. ex rel. Mandell v. Mandell, 184 Pa. Super. 179, 181, 133 A.2d 235; Hecht v. Hecht, 189 Pa. Super. 276, 281, 150 A.2d 139. In a support proceeding, the court is not restricted to the husband's actual earnings, but may consider his earning power, and the extent of his property and other financial resources. Com. ex rel. Zehring v. Zehring, 186 Pa. Super. 393, 397, 142 A.2d 397; Com v. Gleason, 166 Pa. Super. 506, 509, 72 A.2d 595. On the record, we fail to note any abuse of discretion by the hearing judge.
See Kensington Club Liquor License Case, 164 Pa. Super. 401, 405, 406, 65 A.2d 428, relative to the interpretation, in a statute, of the word "court" as meaning one judge or a court in banc.
We may add that, in view of the fact that an order entered by a hearing judge in support proceedings may be subject to revision on a showing of changed conditions, any supplementary proceeding which detracts from the finality or appealability of such order could only result in unnecessary delay, expense, and confusion. Under our established rule that this Court reviews directly the discretion of the trial or hearing judge in support orders, there is ordinarily no room or necessity for supplemental proceedings before a court in banc or otherwise.
We think it is clear that the court in banc lacked authority to proceed to hear the exceptions filed by defendant-husband, to modify the final order of Judge GERBER, and to enter its own order in this case.
Although the question is not before us as the court in banc lacked authority to consider or reduce the order of the hearing judge, it is well established that a support order should not be made retroactive, and that it is only effective from the date of entry. Com. ex rel. Sosiak v. Sosiak, 177 Pa. Super. 116, 120, 111 A.2d 157.
The order of the court in banc is vacated, and the order of the hearing judge is reinstated.