Opinion
April 19, 1955.
July 21, 1955.
Parent and child — Support — Liability of father — Proceeding instituted by mother — Grandfather supporting child at time of action.
1. The Act of June 24, 1939, P. L. 872, § 733, as amended, authorizes a nonsupport action to be instituted by the mother, children, or any person.
2. The existence of an independent source of income is an attendant circumstance only and will not bar enforced contribution from the father.
3. In determining the liability of a father for support of a child, the fact that the mother may have previously refrained from requesting support is immaterial, as is any agreement made not to ask support from the father.
4. In a proceeding for support of a child, instituted by the mother, who had legal custody of the child, against the father, in which it appeared that the cost of maintenance previously had been supplied by the grandfather, it was Held that (1) the mother was the proper person to seek the support and to receive it, even though she was not supporting the child at the time the action was instituted; (2) the fact that the grandfather had been supplying the support for the child did not relieve the father of his legal duty to support; and (3) a support order was properly entered against the father.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ.
Appeal, No. 96, April T., 1955, from order of County Court of Allegheny County, 1955, No. 2955, in case of Commonwealth of Pennsylvania ex rel. Julia Prelec v. Andrew Prelec. Order affirmed.
Proceeding upon petition of mother for support of minor child. Before CORBETT, J.
Order entered directing payment of stated weekly amount. Defendant appealed.
William F. Beatty, for appellant. John M. Feeney, Jr., with him Moorhead Knox, for appellee.
Argued April 19, 1955.
This appeal is from a support order entered against a father for the benefit of his child. The parents are divorced and the child is in the custody of the mother who is to receive the support on behalf of the child. The father does not contest the amount of the order, but rather contends that no order whatever should have been entered.
The child has remained in the custody of the mother since the parties separated. However, due to financial difficulties, both mother and child moved into the home of her parents. Since that time the mother has contributed little or no support for the child, the cost of maintenance having been supplied by the grandfather. The grandfather did not institute this action and has never received or sought support for the child from the defendant.
The defendant father maintains that the mother is not the proper person to seek the support or to receive it because she is not providing actual support and because the grandfather seeks no financial help. Defendant misconceives the law of support. The Act of June 24, 1939, P. L. 872, § 733, as amended, 18 PS 4733 authorizes a nonsupport action to be instituted by the mother, children, or any person. There is no requirement that the mother be supporting the child at the time the action is instituted. The desire of this mother, as expressed by her at the hearing, is to support the child independently and not to live permanently with her parents. The fact that the grandfather has been supplying the support for the child does not relieve the father of his legal duty to support. Com. ex rel. Groff v. Groff, 173 Pa. Super. 535,
98 A.2d 449. The existence of an independent source of income is an attendant circumstance only and will not bar enforced contribution from the father. Com. ex rel. Yeats v. Yeats, 168 Pa. Super. 550, 79 A.2d 793. Nor is there any merit to the contention that only the grandfather should prosecute this action or receive funds on behalf of the child. A support order cannot be retroactive and therefore cannot here be used to reimburse the grandfather. It is patent from the record that the mother has legal custody of the child and it follows that she should be the recipient of the father's contribution. The fact that the mother may have previously refrained from requesting support is immaterial, as is any agreement made not to ask support from the father. Com. ex rel. Yeats v. Yeats, supra.
Order affirmed.