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BELSKY v. BELSKY (11/16/61)

November 16, 1961

BELSKY
v.
BELSKY, APPELLANT.



Appeal, No. 248, Oct. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1959, No. 3437, in case of Helen Belsky v. Nathan Belsky. Order affirmed.

COUNSEL

Nochem S. Winnet, with him Fox, Rothschild, O'Brien & Frankel, for appellant.

Michael C. Rainone, with him Josephine H. Klein, for appellee.

Before Ervin, Wright, Woodside, Watkins, and Flood, JJ. (rhodes, P.j., and Montgomery, J., absent).

Author: Wright

[ 196 Pa. Super. Page 375]

OPINION BY WRIGHT, J.

This appeal arises from an award of alimony pendente lite. On November 30, 1959, Helen Belsky filed a complaint against her husband, Nathan Belsky, for a divorce a mensa et thoro. As a collateral matter in that proceeding, the wife petitioned for counsel fee and alimony pendente lite. In his answer to this petition the husband pleaded an ante-nuptial agreement, alleged by him to be a release of his wife's claim. By order dated December 9, 1960, the court below rejected the husband's contention, made an award of counsel fee, and continued the matter for inquiry into the husband's financial status. On May 2, 1961, an order was entered fixing the amount of alimony pendente lite at $100.00 per week. The husband has appealed.*fn1

[ 196 Pa. Super. Page 376]

On September 9, 1958, Nathan Belsky, a widower with two adult children, and Helen Bonavitacola, a widow with an adult child, were united in marriage. Prior to the marriage an ante-nuptial agreement was executed. The parties lived together until June 27, 1959, when a separation occurred. The precise issue before the court involves the interpretation of paragraph 8 of the ante-nuptial agreement dated August 25, 1958, which reads as follows:

"8. HELEN shall retain as her own property all of the income that she may receive from her property as set forth in Exhibit 'C', hereto attached. In consideration of the relinquishment of any rights that NATHAN may have in her income, HELEN hereby waives, relinquishes, and releases any and all rights, claims or demands for maintenance and support that she may have under the law against NATHAN in the event that she shall cease to live together with NATHAN as husband and wife. HELEN further acknowledges that the income from her separate property is sufficient to maintain and support her and that this Agreement shall be a complete and legal defense to any claim for support that she may assert against NATHAN".

Appellant's statement of the question involved on this appeal is as follows: "Does a wife's release of any and all claims for support and maintenance preclude her claim for alimony pendente lite?" Appellee's counter-statement sets forth additional questions relating to public policy, material misrepresentation, and overreaching. For the purposes of our present decision it will be unnecessary to determine those issues, as we are clearly of the opinion that the language of the instant ante-nuptial agreement does not in any event operate to bar an award of alimony pendente lite.

The validity of an ante-nuptial agreement depends upon the presence of one of two factors, namely, a reasonable provision for ...


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