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decided: June 21, 1974.


Appeals from orders of Court of Common Pleas of Montgomery County, Jan. T., 1973, No. 1185, in case of Commonwealth of Pennsylvania ex rel. Carmella P. Roviello v. Francis Anthony Roviello.


Russell E. Ellis, with him Fox, Differ, Callahan & Ulrich, for relatrix.

Robert E. Gabriel, with him John Rogers Carroll, and Carroll and Gabriel, for defendant.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 229 Pa. Super. Page 430]

These appeals arise from a sentence of contempt imposed by the Court of Common Pleas of Montgomery County on September 25, 1973, on the husband, Francis Roviello, and the refusal of the court to reinstate a support order in favor of the wife, Carmella Roviello. Both appeals are a result of a support action instituted by the wife, for herself and minor daughter.

[ 229 Pa. Super. Page 431]

On March 30, 1973, the wife filed an original action for support in Montgomery County at a time when the parties were living together, having been married for 29 years. On May 14, 1973, the court entered a temporary order against the husband, in the amount of $90.00 per week in favor of the minor daughter. On June 29, 1973, a further hearing was held at which time the court entered an additional temporary order against the husband for $60.00 per week and use of an automobile in favor of the wife.

On July 27, 1973, a further hearing was held at which time the husband orally agreed to convey his interests in the premises and an automobile to the wife, and to pay the wife's reasonable counsel fees. The property settlement was to be reduced to writing and be conditioned upon the wife securing an uncontested divorce. At the conclusion of the hearing, the court ordered the continuation of the previous $90.00 per week order for the child, and, in addition, revoked the previous order for $60.00 per week for the wife, and in its place substituted the terms of the proposed property settlement. An undated property settlement agreement encompassing the details of the July 27, 1973, order, including the transfer of additional items of personalty to the wife, all predicated upon the wife seeking a divorce within 6 months, was signed by the parties. Soon thereafter disputes arose between the parties with respect to the rights and obligations under the executed agreement.

On September 25, 1973, a hearing was held pursuant to a petition filed by the wife requesting reinstatement of the June 29, 1973, order and the finding of the husband in contempt for violation of the July 27, 1973, order, because he had not yet completed the property transfer as ordered. The court refused to honor the signed property settlement agreement, and held appellant in contempt for his refusal to comply

[ 229 Pa. Super. Page 432]

    with the required property transfer of the July 27, 1973, order. The court did not reinstate the order of June 29, 1973, in favor of the wife. The husband was jailed for seven days at the Montgomery County Prison and released upon the grant of a supersedeas by this court.

In appeal No. 1917, the appellant-husband argues that the lower court erred in sentencing him to jail, because at no time was he in violation of a valid court order because the lower court was without authority to compel him to agree to a property settlement at a support hearing. We agree with the husband's contentions and reverse the contempt order of September 25, 1973.

In appeal No. 1956, the appellant-wife contends that the court abused its discretion by revoking the June 29, 1973, order for $60.00 per week for support of the wife because no facts were alleged by the husband showing a permanent change in circumstances justifying the revocation. We agree with the wife's contentions and reinstate the order of June 29, 1973, retroactive to its date.


Appellant-husband, in appeal No. 1917, appeals his conviction for contempt for failure to carry out the terms of the order of July 27, 1973. The contempt citation arose out of the husband's refusal to convey jointly-owned property to his appellee-wife as ordered by the lower court. At the July 27, 1973, hearing, the parties agreed upon a property settlement agreement, which was reduced to writing, signed by the parties, only to be later repudiated by both the husband and the wife. By the terms of the agreement, the wife was to gain sole interest in jointly-held property

[ 229 Pa. Super. Page 433]

    upon the filing for an absolute divorce.*fn1 Upon the failure of the wife to file for divorce, the husband, who had already lodged the deed to the family premises with a lawyer, refused to convey the property.

The lower court, in an attempt to reach an amicable settlement between the parties, included the terms of the property settlement agreement in its order of support of July 27, 1973.*fn2 At the same time, the court

[ 229 Pa. Super. Page 434]

    revoked a previous order of $60.00 per week in favor of the wife. When the husband refused to convey the property described in the property settlement agreement, the court held the husband in violation of its order of July 27, 1973, and in contempt of court. In his appeal, the husband contends that he was not in contempt of the order of July 27, 1973, because the oral agreement between the parties to convey jointly owned property, made in open court, was not the proper subject of a support order.

In our consideration of this issue, we are not concerned with the validity of the written agreement between the parties. The proper determination of the status of this document is in an action for specific performance before a court of equity.*fn3 See Commonwealth ex rel. Rossi v. Rossi, 161 Pa. Superior Ct. 86, 53 A.2d 887 (1947). However, we are concerned with whether a court in an action for support has the power to force the parties to accept essentially the same terms of the property settlement agreement when it is in the form of an order of the court. Thus, in determining whether the lower court erroneously committed the

[ 229 Pa. Super. Page 435]

    husband to jail for contempt for failure to obey an order promulgated by the court in a support proceeding, it must first be ascertained whether the court had the power to fashion such an order.

The lower court is statutorily granted the power to ". . . order the [husband] . . . to pay such sum as said court shall think reasonable and proper for the comfortable support and maintenance of the said wife or children, or both. . . ." Act of December 6, 1972, P. L. 1482, No. 334, § 1 (18 Pa. C.S. § 4322(b)). This statutory discretion has been further clarified by a voluminous body of case law. It is a well-settled maxim of Pennsylvania jurisprudence that a husband has the duty to contribute to the support of his wife, Commonwealth ex rel. Volinski v. Volinski, 180 Pa. Superior Ct. 348, 119 A.2d 648 (1956), and the duty continues until the husband can prove with clear and convincing evidence that the wife's conduct relieves him from this responsibility. Commonwealth ex rel. Korn v. Korn, 204 Pa. Superior Ct. 153, 203 A.2d 341 (1964); Commonwealth ex rel. Reddick v. Reddick, 198 Pa. Superior Ct. 111, 181 A.2d 896 (1962). The husband's duty of support is imposed by law as an incident of the marital status and the legal unity of husband and wife, Commonwealth v. Berfield, 160 Pa. Superior Ct. 438, 51 A.2d 523 (1947) (cases cited therein), and has long been considered by the state as a "paramount" obligation.

The purpose of a support order is to determine an allowance which is reasonable and proper for the comfortable support and maintenance of the wife, Commonwealth ex rel. Rankin v. Rankin, 170 Pa. Superior Ct. 570, 87 A.2d 799 (1952); Commonwealth ex rel. Milne v. Milne, 150 Pa. Superior Ct. 606, 29 A.2d 228 (1942), and is based upon the property, income, and earning capacity of the husband and the family's station in life. Commonwealth ex rel. Fryling v. Fryling,

[ 229 Pa. Super. Page 436220]

Pa. Superior Ct. 68, 283 A.2d 726 (1971); Commonwealth ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 213 A.2d 135 (1965); Commonwealth ex rel. Whitney v. Whitney, 160 Pa. Superior Ct. 224, 50 A.2d 732 (1947).

However, a support order may not be set at such an amount as to serve as a punishment of the husband for misconduct, Commonwealth ex rel. Milne v. Milne, supra, or as a confiscation of the husband's property. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa. Superior Ct. 301, 310 A.2d 672 (1973). And although the court has the power and duty to look beyond the actual earnings of the husband and may consider his earning power and nature and extent of his property and other financial resources, Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1968); Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 311 A.2d 701 (1973), a support action may not serve as an action to divide or distribute the husband's estate. This court has often noted that a proceeding for support cannot be used for the purpose of securing a wife's share of her husband's estate or for the purpose of recovering property to which she might otherwise be entitled. Thus, a court is without jurisdiction in a support action to direct an accounting of funds in which the wife has an interest, Commonwealth v. Gleason, 166 Pa. Superior Ct. 506, 72 A.2d 595 (1950), to distribute the father's estate. Hecht v. Hecht, 189 Pa. Superior Ct. 276, 150 A.2d 139 (1959), or to divide the husband's estate. Commonwealth v. Gleason, supra; Commonwealth v. Elliott, 157 Pa. Superior Ct. 619, 43 A.2d 630 (1945); Commonwealth ex rel. Milne v. Milne, supra; Commonwealth v. Widmeyer, 149 Pa. Superior Ct. 91, 26 A.2d 125 (1942); Commonwealth ex rel. v. Sherritt, 83 Pa. Superior Ct. 301 (1924).

[ 229 Pa. Super. Page 437]

In reviewing the record in light of these restrictions, we find the July 27, 1973, order, directing the division of jointly-owned property, to be beyond the scope of inquiry of a court in a support action. The court, in its attempt to settle the dispute between husband and wife, ordered the husband to transfer his interests in jointly-owned property to the wife. In effect, the July 27, 1973, order directs the division and disposition of the husband's property, an action not available to the discretion of the support court.*fn4 Commonwealth v. Elliott, supra; Commonwealth ex rel. Milne v. Milne, supra.

The fact that the parties agreed in open court to a property settlement agreement, the terms of which were incorporated into the July 27, 1973, order, does not affect our determination that such an order was not the prerogative of the court. The oral consent, and later written contract, may be binding as to the parties;*fn5 however, the consent does not grant the court the power to direct the parties to carry out the ordered transfer of property. Cf. Commonwealth ex rel. Rossi v. Rossi, supra.

The substance of the July 27, 1973, order is beyond the scope of the lower court in the present proceeding, and would be properly before the court only after a final decree or order has been reached, i.e., decree of divorce. We, therefore, find the order of July 27, 1973, to be void.*fn6

[ 229 Pa. Super. Page 438]

Turning now to an examination of the contempt conviction of the appellant-husband for refusing to obey the provisions of the July 27, 1973, order, it is necessary to determine whether the lower court could cite appellant for contempt, despite the fact that the court's order was outside its authorized power.

The courts of Pennsylvania have always possessed the inherent power to enforce orders and decrees by imposing penalties and sanctions for failure to obey or comply therewith. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968); Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa. Superior Ct. 7, 174 A. 11 (1934). It is also statutorily provided that a husband may be imprisoned by a Court of Common Pleas for failure to comply with a support order. Act of May 24, 1917, P. L. 268, § 1, as amended, July 3, 1957, P. L. 446, § 1 (19 P.S. § 1151); Act of December 6, 1972, P. L. 1482, No. 334, § 1 (18 Pa. C.S. § 4322(b)).

The basis for contempt is to provide punishment for contemptuous disregard of a court's authority. Commonwealth ex rel. Litz v. Litz, 190 Pa. Superior Ct. 310, 154 A.2d 420 (1959); Commonwealth v. Peters, 178 Pa. Superior Ct. 82, 113 A.2d 327 (1955). This power is a necessity so that a court may insure compliance with its decrees, and without such power, a decree would in many cases be useless. Philadelphia Marine Trade Association v. International Longshoremen's Association, 392 Pa. 500, 140 A.2d 814 (1958); Williamson's Case, 26 Pa. 9, 18 (1855) ("All courts have [contempt] power . . . otherwise they could not protect themselves from insult, or enforce obedience to their process.")

However, the court's power to punish for contempt is limited to situations in which it has both the jurisdiction

[ 229 Pa. Super. Page 439]

    and the power or authority to render the particular decree or order. In re Schlesinger, 367 Pa. 476, 81 A.2d 316 (1951); Schofield Discipline Case, 362 Pa. 201, 66 A.2d 675 (1949); Commonwealth ex rel. Sage v. Sage, 160 Pa. 399, 28 A. 863 (1894); Commonwealth ex rel. v. Perkins, 124 Pa. 36, 16 A. 525 (1889); Rose Child Dependency Case, 161 Pa. Superior Ct. 204, 54 A.2d 297 (1947); In re Rossiter, 84 Pa. Superior Ct. 193 (1924); Commonwealth v. Heenerfauth, 70 Pa. Superior Ct. 527 (1918); Commonwealth ex rel. v. MacArthur, 62 Pa. Superior Ct. 535 (1916).

In those instances where a court enters an order without authority or legal right to make such an order, it is powerless to attempt its enforcement. Commonwealth v. Heenerfauth, supra. And when a court has jurisdiction of the action and makes an order, but the order is beyond its powers, it is a nullity. The disregarding of an order in excess of the court's authority does not give rise to contemptuous conduct by the parties involved. Commonwealth ex rel. Sage v. Sage, supra; Rose Child Dependency Case, supra. But see Williamson Case, supra. (In case of writ of jurisdiction, court may punish for contempt for disobedience of its order, at least until the determination of the jurisdiction question.)

In applying these principles to the present appeal, and keeping in mind that we have found the lower court without power to order a property settlement in a support proceeding, appellant's conviction for contempt cannot stand. The court in this instance has transcended its authority and may not require compliance with the July 27, 1973, order by virtue of its power to punish for contempt. Commonwealth ex rel. Sage v. Sage, supra. Therefore, we reverse the contempt order of September 25, 1973.

[ 229 Pa. Super. Page 440]

    signed by the parties also provided that the wife would not seek any future increase in the support order for the child.*fn8

On September 25, 1973, the court, after a hearing on the wife's petition requesting in part the reinstatement of the previous support order for herself, refused to reinstate the June 29, 1973, order.*fn9

Orders of support are not final and may be increased or decreased where the financial condition of the parties changes. Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa. Superior Ct. 163, 280 A.2d 456 (1971); Commonwealth ex rel. Meth v. Meth, 188 Pa. Superior Ct. 553, 149 A.2d 488 (1959). And it is the burden of the party seeking to modify a support order to show by competent evidence such a change of circumstances

[ 229 Pa. Super. Page 442]

    as will justify a modification. Commonwealth ex rel. Brennan v. Brennan, 202 Pa. Superior Ct. 255, 195 A.2d 150 (1963); Commonwealth ex rel. Bassion v. Bassion, 199 Pa. Superior Ct. 541, 185 A.2d 822 (1962). In proceedings of this nature, we will not interfere with the determinations of the court below unless there has been a clear abuse of discretion. Commonwealth ex rel. Kreiner v. Scheidt, 183 Pa. Superior Ct. 277, 131 A.2d 147 (1957).

In the instant appeal, we find that the lower court abused its discretion by the revocation of the June 29, 1973, order. The June 29, 1973, order was revoked by the court following an agreement by the parties to a property settlement in open court. The revocation resulted after the presentation of testimony regarding the property rights of the parties; however, there was no evidence on the issue of support and the revocation was ordered without any petition, motion or other affirmative action instituted by either party. The acquiescence of the wife to the revocation of the June 29, 1973, order was apparently based on the reliance of the terms of the court-ordered property settlement, an action which we have already found the court without power to issue. Thus, because we have found the court-ordered property agreement of July 27, 1973, to be a nullity, we must also find the revocation of the June 29, 1973, support order void since its revocation was grounded upon the court's ability to order the settlement of property.*fn10

[ 229 Pa. Super. Page 443]

The finding that the order of July 27, 1973, is void, necessitates that the June 29, 1973, support order of $60.00 per week for the wife be reinstated and continued because there has been no showing of a material change in circumstances since its inception that would authorize its modification or revocation. Commonwealth ex rel. Naselsky v. Naselsky, 199 Pa. Superior Ct. 270, 184 A.2d 288 (1962); Commonwealth ex rel. Crandall v. Crandall, 145 Pa. Superior Ct. 359, 21 A.2d 236 (1941).

That portion of the July 27, 1973, order, revoking the support provisions for the wife is reversed, and the order of June 29, 1973, providing for $60.00 per week support for the wife is reinstated, retroactive to July 27, 1973.

In appeal No. 1917, October Term, 1973, the contempt order dated September 25, 1973, is reversed.


In appeal No. 1956, portion of order revoking support reversed, and support order for wife reinstated, and in appeal No. 1917, contempt order reversed.

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