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STERN v. STERN (07/01/68)

decided: July 1, 1968.

STERN
v.
STERN, APPELLANT



Appeal from order of Superior Court, Oct. T., 1967, No. 355, affirming judgment of County Court of Philadelphia, Sept. T., 1965, No. 2804-D, in case of Lorraine Stern v. Kurt Stern.

COUNSEL

David H. Kubert, for appellant.

Elihu A. Greenhouse, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Musmanno join in this dissenting opinion.

Author: O'brien

[ 430 Pa. Page 607]

This is an allocatur from the order of the Superior Court, affirming per curiam the judgment of the County Court of Philadelphia County. Plaintiff-appellee, Lorraine Stern, ex-wife of defendant-appellant, Kurt Stern, brought suit for payment of arrearages for seven weeks under a written agreement executed on February 7, 1964, at Philadelphia, Pennsylvania, between the parties while they were living together and were still married to each other. This agreement provides, inter alia, for the payment of $75 per week by appellant to appellee under paragraph 8 thereof. Appellant made payments from the time of the execution of the agreement until September, 1965, when he admittedly stopped paying. Verdict was for the plaintiff in the amount of $525 plus $23.61 interest and judgment was entered thereon after denial of defendant's post-trial motions.

[ 430 Pa. Page 608]

Appellant took an appeal to the Superior Court which affirmed per curiam. We granted allocatur.

Appellant asserted two grounds as a defense to the complaint, which grounds he here reasserts in support of his motion for judgment n.o.v.: 1. The agreement was null and void, because it was contrary to the public policy of the Commonwealth, being conducive to divorce. 2. There was no valid consideration for a promise to pay an ex-wife any money after her status as wife ended with a final decree in divorce A.V.M. which she sought and obtained.

Appellant also asserts numerous errors in the court's charge and in its conduct of the trial. We find it unnecessary to consider these, however, for we are of the opinion that nothing should have been submitted to the jury in the first place, since the only questions were questions of law for the court. We hold that the agreement sued upon was not inimical to the public policy of the Commonwealth as conducive to divorce, and that there was valid consideration for the agreement to pay money to an ex-wife.

Appellant's contention that the agreement violates public policy as being conducive to divorce is based on paragraphs 8, 4(f), and 4(g) of the agreement. These provide:

"8. From and after the date of the execution of these presents, Husband shall pay for the comfort, support and maintenance of Wife the sum of $75.00 per week, which payment shall continue until the death of either party hereto, or until the remarriage of Wife, whichever shall first occur; excepting, however, that in the event a final Decree in Divorce A.V.M. has not been awarded either party hereto at the expiration of six months from the date of these presents, ...


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