Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, No. C-2287 of 1968, in case of Commonwealth ex rel. Margaret D. Jones v. Putnam F. Jones.
Ira R. Hill, with him John McN. Cramer, and Reed, Smith, Shaw & McClay, for appellant.
Chris F. Gillotti with him Homer W. King, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J.
This appeal involves an interpretation of The Pennsylvania Civil Procedural Support Law, Act of July 13, 1953, P. L. 431, 62 P.S. 2043.31 et seq. The question presented is whether the provisions of this statute may be used as a remedy to collect payments due under a separation agreement executed prior to a divorce.
Putnam F. Jones and Margaret D. Jones were formerly husband and wife. Their marriage was dissolved by divorce on December 22, 1950. Prior to the divorce proceeding the parties entered into an agreement, November 1, 1950, the eighth paragraph of which, set forth in the footnote,*fn1 required the payment of $150.00
per month for the wife's support. After complying with the agreement for some sixteen years, appellant ceased making the monthly payments. According to the opinion below, appellant has remarried and has placed his assets beyond the reach of judgment creditors. His former wife, who has not remarried, filed a complaint for support under The Pennsylvania Civil Procedural Support Law. The court below made an order enforcing the terms of the agreement, and this appeal followed.
Section 2 of the statute under consideration defines duty of support to include "any duty of support imposed or imposable by law or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, prosecution for failure to support a child born out of lawful wedlock, or otherwise". Appellant contends (1) that the statute does not provide a mechanism for the enforcement of an obligation created by private contract; and (2) that the statute cannot be applied to one who was divorced prior to its enactment. Since we are in accord with the first contention, consideration of the second contention is not required.
It is of course true, as argued by counsel for the appellee, that liability under a postnuptial agreement is not terminated by a subsequent divorce: Muhr's Estate, 59 Pa. Superior Ct. 393; Cavazza Estate, 169 Pa. Superior Ct. 246, 82 A.2d 331; Miller v. Miller, 284 Pa. 414, 131 A. 236. However, the obligation created by such an agreement is contractual in nature, and the remedy to enforce that obligation is an action in assumpsit:
Commonwealth ex rel. Bonicker v. Bonicker, 205 Pa. Superior Ct. 191, 208 A.2d 14. There is no duty of support owed to a divorced wife by her former husband: Commonwealth ex rel. Bortin ...