Commonwealth ex rel. Caler v. Caler

16 Pa. D. & C.3d 14, 1980 Pa. Dist. & Cnty. Dec. LEXIS 299
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedApril 1, 1980
Docketno. 100 Domestic 1977
StatusPublished

This text of 16 Pa. D. & C.3d 14 (Commonwealth ex rel. Caler v. Caler) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Caler v. Caler, 16 Pa. D. & C.3d 14, 1980 Pa. Dist. & Cnty. Dec. LEXIS 299 (Pa. Super. Ct. 1980).

Opinion

COFFROTH, P.J.,

The issues before us are presented in three related cases above captioned: the first (100 Domestic 1977) on defendant’s application for review of a support order and the department’s petition for attachment of defendant for contempt, the second (1968 Judgment 1979) on plaintiff’s motion for summary judgment against the garnishee (defendant’s bank) in an attachment execution on defendant’s bank deposit issued on a judgment for support arrearages, and the third (11 Incompetent 1979) on the petition of the domestic relations director for adjudication of defendant as an incompetent and appointment of a guardian for his estate.

The issues are these:

(1) Does the evidence warrant an adjudication of defendant as an incompetent?

(2) Are defendant’s social security benefits, Veteran’s Administration disability benefits and U.S. [16]*16Air Force disability retirement pay subject to attachment execution in the hands of defendant or in his bank account, on a support order? If so, is plaintiff entitled to summary judgment against the garnishee after filing its answers to interrogatories?

(3) Is defendant entitled to credit on the support order for the amount of a Veteran’s Administration allotment for family support granted to plaintiff wife after the support order was made?

HISTORY

The support order under review is for $250 monthly for defendant’s wife (plaintiff) and six children, made May 18, 1977 (Shaulis, J.). Defendant was and is retired from the U.S. Air Force for disability; his entire income consists of social security benefits, Veteran’s Administration disability benefits and disability retirement pay from the Air Force, totaling $811.80 monthly initially, now $719 monthly. The $250 monthly support order was made on the recommendation of the domestic relations department after departmental conference. The first payment was due June 1, 1977, and neither party filed an application for review of the order.

Defendant made the first two payments of $250 each due for June and July, 1977. On August 1, 1977 defendant telephoned the department concerning his support order and talked with a department clerk. The departmental log of the case shows the following entry by the clerk under date of August 1, 1977:

“Defendant said the plaintiff has applied for V.A. benefits. The defendant is receiving an Air Force pension. He said he also heard the plaintiff can-celled her social security check. Wanted to know if [17]*17he should make a payment now. Wants the matter checked into. Advised him not to make a support payment until things are settled. His mailing address is West Salisbury, Pa.”1

Defendant testified that he paid nothing further on the order because he heard nothing further from the department in response to his telephone call, but the record shows that the department thereafter made numerous efforts to contact him and to make collection, beginning with a scheduled report conference for October 14, 1977 of which both parties were notified. Apparently defendant attended but so conducted himself as to produce the log entry: “Defendant is mentally disturbed, Mrs. Gardner [of] VA will attempt to help.”

On February 2, 1978 the court issued an attachment to the U.S. Air Force upon defendant’s disability retirement pay, which was refused on the ground that disability pay is not subject to garnishment.

On February 5, 1979 defendant was notified to appear at the department on February 13, 1979 at 2:40 p.m. For fading to appear, process for defendant’s arrest was requested of and issued by the court on February 15,1979 and was delivered to the state police for execution. On March 9, 1979 defendant was contacted by an officer who reported to the department that defendant was unable to comprehend the questions asked, had been in Somerset State Hospital several times, and was living in his car. On Aprd 17, 1979 a departmental officer contacted defendant who also found defendant living in his car and defendant refused to speak with the [18]*18officer. The officer also learned in his investigation that plaintiff was then gainfully employed.

On May 25, 1979 defendant was taken into custody on the issued process and incarcerated in the Somerset County jail; at the same time, the state police filed a criminal complaint against defendant charging him with resisting arrest, aggravated assault and simple assault (278 Criminal 1979), based on events alleged to have occurred when the officers executed the process. Defendant failed or refused to obtain counsel notwithstanding his financial ability to do so, but on July 11, 1979 the court (Shaulis, J.) directed the public defender to represent him at the prefiminary hearing.

On August 9, 1979 a hearing was held before the court to determine defendant’s status on the domestic process at which time defendant refused to pay the support order. He was advised to obtain counsel, was assured of the sheriff’s assistance in communicating with counsel, and was informed of the proper procedure for seeking a reduction in the amount of the order; the process was discharged and defendant remanded to the sheriff’s custody for want of bail on the criminal charges.

On August 17, 1979 the domestic relations department filed a complaint for enforcement of the support order by attachment and for contempt and also filed a petition in the orphans’ court division to adjudicate defendant incompetent and for appointment of a guardian for his estate. Defendant was brought before the court on those matters on September 24, 1979 when the hearing was continued until October 11, 1979. On the latter date defendant appeared without counsel and complained of the illegality and the amount of the support order, but he had filed no petition for modifica[19]*19tion of the order; the court (Coffroth, P. J.) held that there was insufficient evidence of incompetency and continued hearing on the contempt complaint and the petition for guardian “with directions to the department to schedule a departmental review hearing at which you will interview both of the parties to determine the propriety of the present order, after which the department shall make a report to the Court.” That review was ordered nothwithstanding that defendant had filed no formal petition for modification and apparently refused to do so.

On October 18, 1979 defendant went to trial before a jury on the criminal charges. The trial judge (Coffroth, P.J.) dismissed the charges of resisting arrest and aggravated assault after the evidence showed that the process issued was defective, but submitted the case to the jury on the charge of simple assault of which defendant was found guilty. On the same day, defendant’s bail was reduced from $50,000 to $2,000, but defendant refused to give bail notwithstanding his ability to do so and remained incarcerated until he was sentenced on January 8,1980 when, having served more than his minimum sentence, he was placed on parole.

On November 2, 1979 the domestic relations departmental conference or hearing was held, and a report to the court was made recommending against modification of the support order of $250 monthly, which was approved by the court on November 8, 1979 (Coffroth, P.J.).

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Cite This Page — Counsel Stack

Bluebook (online)
16 Pa. D. & C.3d 14, 1980 Pa. Dist. & Cnty. Dec. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-caler-v-caler-pactcomplsomers-1980.