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COMMONWEALTH EX REL. DIVALERIO v. DIVALERIO (07/19/51)

July 19, 1951

COMMONWEALTH EX REL. DIVALERIO
v.
DIVALERIO



COUNSEL

Bernard R. Cohn, Philadelphia, for appellant.

Vincent C. Veldorale, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ.

Author: Gunther

[ 169 Pa. Super. Page 478]

GUNTHER, Judge.

Relatrix filed her petition seeking support from her husband. After hearing, the court below entered an order requiring appellant to pay his wife the sum of $15 per week. The husband subsequently filed a petition

[ 169 Pa. Super. Page 479]

    for rehearing which was dismissed. This appeal by the husband followed.

The amount of the support order is not involved. Appellant contends that no order should have been entered for the reason that articles of separation entered into by the parties constituted a post-nuptial agreement; that the subsequent reconciliation of the parties did not abrogate such agreement; that the wife's release of future support contained therein constituted a full and complete bar to this action; that the court below erred in entering the support order now appealed from.

The parties were married on January 19, 1941 and separated on April 9, 1945, at which time they entered into Articles of Separation wherein the wife was to receive $700 in cash and certain furnishings valued at $2,500. The agreement also provided that the wife released and discharged her husband '* * * from all obligation of support and from all other claims, rights, and duties arising out of said marital relations.' On March 13, 1948 the parties were reconciled and cohabited for approximately 17 months until August 19, 1950 when they again separated.

Whether the articles of separation constituted a post-nuptial agreement or merely a separation agreement depends upon the intent of the parties as gathered from all the facts. Where parties desire to settle and dispose of their respective property rights finally and for all time, such agreement should be construed as a post-nuptial agreement. Commonwealth ex rel. Makowski v. Makowski, 163 Pa. Super. 441, 444, 62 A.2d 71. The subsequent reconciliation of the parties does not abrogate such a post-nuptial agreement. In re Ray's Estate, 304 Pa. 421, 156 A. 64, 79 A.L.R. 772. On the other hand, a separation agreement does not constitute, nor is it intended to constitute a full and final determination of the separate property rights of the parties; it

[ 169 Pa. Super. Page 480]

    is customarily a surrender of the wife's right to support in consideration of some property settlement. Subsequent reconciliation and cohabitation presumably end a separation agreement. Commonwealth ex rel. Makowski v. Makowski, supra; In re Henkel's Estate, 59 Pa. Super. 633. Cf. Restatement, Contracts § 384(2); 6 Williston, Contracts, § 1742, p. 4932. We have little difficulty in concluding that the Articles of Separation here involved did not constitute such a full and final ...


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