Mallinger v. Mallinger , 197 Pa. Super. 34 ( 1961 )

Opinion by

Ervin, J.,

Lena Mallinger, appellee, and Isadore Mallinger, appellant, being the parents of Anita Ellen Mallinger, then five years of age, on March 21, 1951 entered into a written agreement providing for custody of the child in the mother with rights of visitation in' the father at times to be mutually agreed upon. The agreement also provided that the father should pay to the mother $25.00 per week (later increased by oral agreement to $30.00 per week) for the support of the child.

The appellant made payments until January 6, 1959 when he stopped making payments because the mother refused the right of visitation. The mother then filed a complaint in assumpsit and the father filed an answer admitting the contract and his failure to pay but excused his failure upon the breach by the mother. The court below entered judgment on the pleadings for the mother in the sum of $2,280.00.

There is a well defined principle of law that where an agreement is mutual and dependent, and one party fails to perform his part, the other may treat the contract- as breached: Camenisch v. Allen, 158 Pa. Superior Ct. 174, 177, 44 A. 2d 309. This, however, is -not the ordinary case and that principle is not applicable.

Custody of children is not a property right of the parties. The court may, if it is for the welfare of the child, enforce the bargain, but will not do so otherwise: Restatement, Contracts, §583, comment a. The duty to support a child arises not because of the contract but because of law. It arises independently and not because of the mutual promises in the agreement. As was said by Judge, later Justice, Arnold, “the duty of the father to support a three year old child is well nigh absolute.” See Com. ex rel. Firestone v. Firestone, 158 Pa. Superior Ct. 579, 581, 45 A. 2d 923. In that case the court in one order decreed (1) the right of visitation to the father and (2) support of $10.00 per week against the father. The mother moved to another state and the court below suspended the order of support because of the mother’s defiance of the court. We reversed. For a similar situation see Com. ex rel. Swinburne v. Mullen, 193 Pa. Superior Ct. 237, 240, 163 A. 2d 920, where we said: “The children should not be punished because of some conduct of the mother not affecting her fitness for custody.”

In Foley v. Foley, 63 Pa. Superior Ct. 69, a decree was entered where the husband was to pay $1,000.00 within ten days and $250.00 in three months from the date of the decree. The wife was to deliver a quit claim deed for jointly held real estate upon payment of the $1,000.00. By agreement of counsel made at the same time, the wife was to permit the husband to see his children at such reasonable times and places as might be agreed upon. Five months after the decree and agreement were made the husband made application to the court to stay the collection of the moneys provided for in the agreement because the wife had refused to comply with the stipulation of counsel that he might see his children. We affirmed an order made by the court below refusing such stay. We said, at page 71: “. . . the right of the appellant to see his children can be raised at any time on a writ of habeas corpus. . . .”

A father of sufficient means must support his child, and it is not a defense that either the mother-custodian, or the child itself, has independent means: Com. ex rel. Firestone v. Firestone, supra, at page 581.

A mother may not bargain away the right of the children of the marriage to adequate support from the father, regardless of the validity of the agreement as between the spouses themselves: Com. ex rel. Rossi v. Rossi, 161 Pa. Superior Ct. 86, 53 A. 2d 887; 18 P.L.E., Husband and Wife, §102.

As the court below well said: “If the collateral agreement for visitation rights were to be construed as interdependent with the agreement for support the parents have constructed a contract term to limit or bargain away the right of the child to support.”

■ Wes further agree with the thought expressed by the court below “that the public policy in the State of Pennsylvania requires the treatment of support of children and visitation rights as distinct problems, both of which may be enforced by proper and adequate legal action.”

Judgment affirmed.