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DOROTHY KAY v. JAMES M. KAY (03/18/75)

decided: March 18, 1975.

DOROTHY KAY
v.
JAMES M. KAY, APPELLANT



COUNSEL

James J. DeMarco, DeMarco & Carrafiello, Philadelphia, for appellant.

William F. Sullivan, Jr., Post & Schell, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 460 Pa. Page 682]

OPINION OF THE COURT

On September 11, 1967, shortly before the divorce proceedings were commenced, the appellant and appellee entered into a separation agreement. By that agreement the appellant undertook, inter alia, to pay $20.00 per week to the appellee. Payments were to cease only in

[ 460 Pa. Page 683]

    the event of appellee's remarriage.*fn1 The agreement was signed and sealed in the presence of the parties and the scrivener.

On February 1, 1973, appellee filed a complaint in equity seeking specific performance of the agreement as to the future payments and recovery of past payments allegedly due and owing. The chancellor enforced the agreement and concluded that the appellant had made payments totaling $1,080 and that he owed the appellee at the time of final adjudication the sum of $5,660. The appellant took various exceptions to the chancellor's findings of fact and conclusions of law, those exceptions were denied, and this appeal followed.*fn2 We affirm.

The appellant first argues that the chancellor erred in failing to credit his testimony concerning the fulfillment of the support obligation by unreceipted cash payments and the fraudulent making of the agreement. Credibility is solely an issue for the trier of fact, Duncan Estate, 426 Pa. 283, 232 A.2d 717 (1967); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa. Super. 418, 307 A.2d 449 (1973), and our review is limited to the question of whether the chancellor's findings are adequately supported by the evidence as a whole. Hatalowich v. Redevelopment Authority of City of Monessen, 454 Pa. 481, 312 A.2d 22 (1973); Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966); Bokoch v. Noon, 420 Pa. 80, 215 A.2d 899 (1966). Here, only the appellant himself testified as to the cash payments. His testimony was rebutted by the

[ 460 Pa. Page 684]

    appellee. The chancellor concluded the appellee was more credible.

The appellant's allegations of fraud concern his understanding of the length of time he was obligated to pay the agreed support. However, the scrivener testified that the appellant was afforded the opportunity to read the agreement and that the scrivener had read aloud the agreement to both parties before its execution. The appellant himself testified that he simply neglected to read the contract before signing. Such testimony indicates carelessness and unilateral mistake, not fraud. Schoble v. Schoble, 349 ...


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