Appeal from order of Court of Common Pleas of Montgomery County, Sept. T., 1971, No. 450, in case of Commonwealth ex rel. Janice Davidow v. Donald Davidow.
B. Jerome Shane, for appellant.
Morris C. Solomon, with him Solomon, Resnick & Hoffman, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J.
[ 223 Pa. Super. Page 100]
This is an appeal from the judgment of the Court of Common Pleas, Criminal Division, of Montgomery County dismissing an action for support instituted by the appellant-plaintiff, Janice Davidow, against her former husband, the defendant-appellee, Donald Davidow, for the support of a six year old minor child.
The parties to this action were divorced in 1969. The action having been brought in Philadelphia and in pursuance of that divorce proceeding, the parties entered into a separation agreement dated September 9, 1969. The pertinent portions of that agreement are as follows:
"Twelfth: Support of Minor Child
"(a) It is specifically understood and agreed by and between the parties hereto that Husband shall pay to Wife the sum of Fifty ($50.00) Dollars per week for the care, support and maintenance of the parties' minor child until such child attains age eighteen (18) years or dies, marries or is self-supporting or emancipated, whichever, event shall first occur.
[ 223 Pa. Super. Page 101]
"(b) Husband further agrees that he will maintain Blue Cross and Blue Shield coverage for such child until she becomes eighteen (18) years of age or until such time as such child shall marry, become self-supporting or emancipated, whichever shall first occur.
"(c) Nothing herein contained shall be construed to relate to Husband's obligation, if any, to support the said minor child during any years in which she may obtain post high school education or to pay for such education. Husband's obligation, if any, in that respect shall be determined between the parties and, if necessary, by the Court, in accordance with the law, the requirements and the conditions of the parties and of the said minor child then obtaining, and in accordance with Husband's obligations, if any, under the then existing law. Nothing herein contained shall be deemed to prevent Husband from voluntarily paying directly to or on behalf of said minor child such sum or sums of money as he shall, in his sole and unfettered discretion, deem proper and necessary for the education and maintenance of such child at college. Any such payments shall be strictly voluntary and nothing herein contained shall be deemed to be an admission or agreement that such education is proper or necessary, or that Husband can afford to pay for same or is legally obligated in any way to pay for same.
"(d) It is specifically understood and agreed that the provisions herein contained relating to the support of the parties minor child and the provisions herein contained relating to custody of and visitation with the said minor child shall be forthwith entered, as herein-after provided for, as part of a support order against Husband by agreement, and custody order by agreement in the Domestic Relations or Family ...