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COMMONWEALTH EX REL. FISCHER v. FISCHER (09/16/65)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 16, 1965.

COMMONWEALTH EX REL. FISCHER, APPELLANT,
v.
FISCHER

Appeal from order of County Court of Philadelphia, May T., 1964, No. 216475, in case of Commonwealth ex rel. Martha Fischer v. Albert Fischer.

COUNSEL

Francis T. Anderson, for appellant.

Bernard L. Segal, with him Emanuel Romm, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Wright, J.

Author: Wright

[ 206 Pa. Super. Page 204]

Martha Fischer has appealed from an order of the County Court of Philadelphia entered in a support proceeding on December 18, 1964, which order discharged a rule to show cause why an order previously entered

[ 206 Pa. Super. Page 205]

    by agreement should not be vacated. It will be necessary to briefly summarize the factual and procedural situation revealed by our review of this voluminous original record.

Albert and Martha Fischer were married in 1929 and had one child, a son now an adult serving in the Marine Corps. In 1941 the wife obtained a divorce on the grounds of desertion. Several weeks after the divorce, according to the wife's testimony, she went back to live with her husband. Her theory is that there was a common law remarriage. See Wagner Estate, 398 Pa. 531, 159 A.2d 495. We agree with the hearing judge that the wife's testimony is not credible, and there is considerable basis for the eventual conclusion below that there was no common law remarriage. However, it is unnecessary to decide this question, and we expressly do not do so.

The instant proceeding commenced with a petition for support filed on May 5, 1964. After taking the testimony of the parties, the hearing judge entered an order on September 14, 1964, calling for the payment of $15.00 per week. The reason for this order, as stated in the opinion below, appears in the footnote.*fn1 On September 17, 1964, the husband presented a petition for rehearing and reconsideration, which was granted. Additional testimony was taken on October 14, 1964, from a number of witnesses on each side, and decision was reserved. At an adjourned hearing on November 2, 1964, the parties arrived at a settlement by virtue of

[ 206 Pa. Super. Page 206]

    which the petition for support was dismissed with prejudice. The hearing judge at that time noted in parenthesis a finding of fact that there was no common law marriage.*fn2 As a result of the settlement, Mrs. Fischer received the sum of $500.00, and her attorney, Lisa A. Richette, received the sum of $200.00.

On December 14, 1964, Mrs. Fischer, through her present counsel, obtained a rule to show cause why the order of November 2, 1964, should not be vacated and the support proceeding reinstated. The allegations in her petition for the rule were (1) that she never intended to agree to the settlement, (2) that she did not sign an agreement to that effect, and (3) that she was misled by her attorney's advice. Additional testimony, including that of Mrs. Richette who had negotiated the settlement as Mrs. Fischer's counsel, was taken on December 18, 1964. The hearing judge thereafter discharged the rule and, as previously indicated, Mrs. Fischer has appealed.

[ 206 Pa. Super. Page 207]

The record discloses that Mrs. Fischer is a mature, intelligent, sophisticated woman with two years of college education. She had been married and divorced prior to her marriage to Fischer. Both her attorney and the hearing judge conducted an examination as to her understanding of the settlement. We are convinced that Mrs. Fischer knew exactly what she was doing, that she was fully aware of the significance of the settlement, and that she was not misled in any manner. The record is entirely devoid of any suggestion of fraud or imposition. See Berg v. Cypher, 291 Pa. 276, 139 A. 844; Commonwealth ex rel. Jablonski Page 207} v. Jablonski, 179 Pa. Superior Ct. 498, 118 A.2d 222. There were serious questions in the case, not only as to the existence of a common law remarriage, but also as to whether the husband, sixty odd years of age and with his right hand missing, has any present earning capacity. We are not in sympathy with this effort to avoid an agreement reached in open court between parties properly represented by counsel, and in which the hearing judge himself participated. See McRoberts v. Burns, 371 Pa. 129, 88 A.2d 741.

Order affirmed.

Disposition

Order affirmed.


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