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GILLAN v. GILLAN (09/22/75)

decided: September 22, 1975.


Appeal from judgment of Court of Common Pleas of Bradford County, April T., 1974, No. 408, in case of Patricia A. Gillan v. Percy Frederic Gillan.


Frank J. Niemiec and Maurice L. Epstein, for appellant.

Michael J. DeSisti, for appellee.

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

Author: Cercone

[ 236 Pa. Super. Page 149]

This appeal arises from a judgment in favor of Patricia A. Gillan in an assumpsit action against her former husband, Percy Gillan. The judgment was based upon Mr. Gillan's breach of a separation agreement clause which provided for his continued support of Patricia A. Gillan and, by its terms, survived the Gillans' New York divorce. Mr. Gillan brings this appeal alleging principally that the agreement was collusive insofar as the real consideration for the agreement was Mrs. Gillan's promise not to defend against his New York divorce action; and also, that enforcement of alimony agreements offends against Pennsylvania public policy. We disagree with these arguments and will affirm. The facts are as follows:

By September of 1969, appellant was desirous of dissolving his marriage of long standing. Announcing his desire to separate, appellant and his wife entered into a separation agreement which provided, inter alia, for the support of Mrs. Gillan and the two children of the marriage in the amount of $4600 per year for Mrs. Gillan and $2600 yearly for the children. The separation agreement also contained a clause which provided that the agreement should be incorporated into any absolute divorce decree terminating the marriage; but, in the event the agreement is not so incorporated, it should nevertheless survive the divorce. It is not contended that this first agreement was collusive.

[ 236 Pa. Super. Page 150]

By March of 1972 the parties agreed that no reconciliation of the marital differences was possible. They then decided to amend the separation agreement to more nearly conform to their interests. The precise reason for so doing formed the crux of the dispute below, Mr. Gillan contending that his wife threatened to contest the divorce unless he made certain concessions to her in the new agreement. Shortly thereafter, Mr. Gillan sued for a divorce which was granted without incorporating the agreement. Mrs. Gillan did not contest.

Mr. Gillan continued to perform all promises under the agreement, including support for his wife, from March of 1972 until June, 1974. He then discontinued his payments in support of his wife, and she brought and succeeded in her suit in assumpsit from which this appeal arises.

For the reasons which follow we find that New York law should be applied to determine the validity of the agreement in the face of appellant's charge that the agreement was collusive. On the other hand, the law of this Commonwealth shall be applied to determine its current enforceability against appellant in the courts of Pennsylvania.

The approach to choice of law in Pennsylvania has undergone a drastic change in the last decade. The cause of this metamorphosis was the promulgation of the American Law Institute's Restatement of Conflict of Laws, Second. The introduction to the new Restatement notes "the enormous change in dominant judicial thought respecting conflicts problems" which has resulted in "the jettisoning of a multiplicity of rigid rules in favor of standards of greater flexibility. . . ." The courts of this Commonwealth did not long ignore the trend and, in Griffith v. United Air Lines, Inc., 416 Pa. 1 (1964) overruled a substantial body of Pennsylvania case law and adopted the new Restatement's approach to conflicts problems. See also Cipolla v. Shaposka, 439 Pa. 563 (1970). Thus, it would be error for us to apply the old,

[ 236 Pa. Super. Page 151]

    single reference rule that, all other considerations aside, the place where the contract became binding, or the place where it was to be performed, controls the choice of law.

The general provisions for choice of law are set forth in the Restatement, Second at Section 6:

"Choice-of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the ...

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