Commonwealth Ex Rel. Armor v. Armor

PRICE, Judge:

This is an appeal from the order of the Court of Common Pleas of Montgomery County dismissing father-appellant’s petition to reduce a support order previously entered for two children in the amount of $75.00 per week. This original order in the amount of $75.00 per week for the two children was entered by the court below, after full hearing, on November 18, 1976. No appeal was taken.

On January 24, 1977, father-appellant filed the petition to reduce this $75.00 per week order on the basis of the changed circumstances of the mother-appellee. It is the denial of this petition on March 8, 1977, that forms the basis of the present appeal.

This appeal was initially argued before this Court on December 9, 1977, and was on September 21, 1978, ordered to be reargued before this Court En Banc during our December, 1978 session in the Eastern District. Such reargument occurred on December 7, 1978.

Father-appellant’s petition for reduction set forth in its support that mother-appellee’s circumstances had changed in that she had remarried, had ceased her employment and had moved from her apartment into the home of her new husband. Mother-appellee’s answer admitted these facts.

We have reviewed this record thoroughly and find absolutely no merit to appellant’s contention that the evidence establishes his entitlement to a .reduction in the $75.00 per week support order for the parties two children. Were this appellant’s sole contention this court would have long ago unanimously affirmed the dismissal of appellant’s petition.

It is appellant’s second contention that causes us concern and had prompted the delay and reargument previously recited.

Appellee has, as the record leaves no doubt, remarried and her present husband is a Judge of the Court of Common Pleas of Montgomery County. Her present husband did not participate in, nor is there an iota of evidence that he evidenced any active interest in, the proceedings presently under review. The matter was, however, heard by one of the present husband’s colleagues on the bench of the Court of Common Pleas of Montgomery County.

On March 7, 1977, one day prior to the hearing which produced the present order, appellant filed a Petition for Change of Venue. This petition set forth appellee’s remarriage to the Judge and alleged:

1. That because of the official position of appellee’s new husband a fair and impartial hearing could not be had in Montgomery County, and

2. That because of the official position of appellee’s new husband any hearing within Montgomery County would create the appearance of impropriety in violation of the Disciplinary Rules of the Code of Professional Responsibility and the principles embodied in the Canon and Ethical Consideration of the Code, as adopted, Pa.R.C.P. No. 205.¹

The Petition for Change of Venue was also denied by the court below on March 8, 1977, and this denial is also a subject of this appeal.

We disagree with appellant in his contention that he can not receive a fair and impartial hearing in Montgomery County, therefore on that ground we will not disturb the ruling of the court below.

We believe, however, that we should not approve the procedure whereby any of the judges of the Court of Common Pleas of Montgomery County are called upon to rule on matters relating to wife-appellee’s child support matters. Such actions would, in our opinion, tend to weaken the public confidence in a court that has established an enviable record in its performance and service to Montgomery County and its citizens. Pursuant to Canon 1 of the Code of Judicial Conduct such action would be. contrary to the appearance of integrity and independence of the judiciary which we are charged with preserving.

Further, we believe that such action is contrary to Canon 2 of the Code of Judicial Conduct in that it does not promote public confidence in the integrity and impartiality of the judiciary.

We immediately add that our detailed review of this record does not reveal a single instance of bias, prejudice or unfairness. Nevertheless, the judicial system must be kept, like Caesar’s wife, above reproach. Under the circumstances here presented, the appearance of appellee before the bench of Montgomery County, involving as it must her remarriage to a member of that bench, demands that such a case not be heard by any of the judge-husband’s colleagues.

Although appellee argues the Petition for Change of Venue does not preserve the issue of assignment of an out-of-county judge, we disagree. It is, by its nature, included within the scope of the original petition. Also, by the second prong of the petition as to appearance of impropriety, the appellant has articulated the very issue decided by us today.

We find no merit to the remaining contentions of appellant.

We do not, however, foreclose the court below from the granting of a change of venue. We vacate the order dismissing appellant’s Petition for Reduction of Support Order and the order denying the Petition for Change of Venue. We remand either for the assignment of an out-of-county judge or the grant of a change of venue.

CERCONE, J., files a concurring and dissenting opinion. WIEAND, J., files a dissenting opinion in which HESTER, J., joins. HOFFMAN and SPAETH, JJ., did not participate in the consideration or decision of this case.

1 . This is an erroneous reliance. We assume, however, a reference to the Code of Judicial Conduct, effective January 1, 1974. In particular we emphasize Canon 1 and 2.