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decided: November 22, 1976.



Jack A. Rounick, Norristown, with him Stanley A. Uhr, Monessen, for appellant.

Jordon R. Pitock, Philadelphia, with him Leonard A. Grades, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., dissents.

Author: Jacobs

[ 246 Pa. Super. Page 309]

This is an appeal from an order dismissing appellant Barbara J. Weiss Lurie's complaint in equity on the ground that the property settlement agreement which the

[ 246 Pa. Super. Page 310]

    complaint sought to enforce was invalid and unenforceable because against public policy. We reverse.

On June 2, 1975, while married but living separate and apart, appellant and appellee entered into the property settlement agreement which is the subject of this appeal. The terms of the agreement provided that appellee was to transfer to appellant certain real and personal property, conditioned "[u]pon and in the event of the entry or issuance of a final decree in divorce . . ." within four months of the date of the agreement. A cash payment of $23,000.00, "in full payment to wife for the release by her of such property rights as she may have in jointly or separately owned property . . ." was conditioned as set forth above and was additionally conditioned upon tender of "such resignations as may be requested of her by husband from any position she may presently occupy as Trustee, Officer and/or Director of any trust, corporation or other entity in which husband may be involved as a principal or otherwise. . . ." In the event that a divorce decree was not entered within four months, the agreement was to become null and void and the parties remitted to the appropriate court for determination of their status. The agreement provided that the parties could extend the four month period by agreement in writing. In the event that the resignations were not tendered appellant was to forfeit the $23,000.00 payment, irrespective of compliance with the four month condition.

Appellant instituted an action for divorce a. v. m. on July 1, 1975, a master's hearing was held, and, on October 14, 1975, a master's report was filed. In November, 1975, while the master's report was awaiting action by the lower court, appellant requested a sixty day extension of the four month period. She was advised by letter dated November 17, 1975 that appellee would not consent to an extension. On November 18, 1975 she filed her complaint in equity, admitting that a divorce decree had not been entered within four months but averring that

[ 246 Pa. Super. Page 311]

    appellee should nevertheless be required to comply with the terms of the property settlement agreement. An order was then entered and continued after hearing enjoining the escrow agent from returning items held by him under the terms of the agreement until further order of court. Appellee's answer and new matter were filed shortly thereafter, averring that pursuant to its terms, the agreement had become null and void because a divorce decree had not been entered within the four months specified in the agreement. Appellant's reply to new matter countered appellee's defense with allegations that time was not of the essence of the agreement and that, alternatively, the breach was de minimus. In the interim, a final decree in divorce was granted.

A further hearing was held on December 31, 1975 before Judge GATES, specially presiding. At that hearing the validity of the property settlement agreement was raised sua sponte and the court requested that the parties submit briefs on the agreement's legality and enforceability. Following oral argument, the lower court held that the agreement was "patently illegal" and unenforceable by a court of equity. In its opinion the court below concluded that the agreement was against public policy and therefore illegal and unenforceable because it was "obviously a collusive agreement" and because it was "directly conducive to the procurement of a divorce." An order dismissing appellant's complaint was entered on February 12, 1976. This appeal followed.

The law is well settled that an agreement as to support, alimony, or an adjustment of property rights between a husband and wife is perfectly proper, valid and legal even though made in contemplation of divorce. Stern v. Stern, 430 Pa. 605, 243 A.2d 319 (1968); Dora v. Dora, 392 Pa. 433, 141 A.2d 587 (1958); Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 79 (1946); American Nat'l Bank of Camden v. Kirk, 317 Pa. 551, 177 A. 801 (1935); Miller v. Miller, 284 Pa. 414, 131 A. 236 (1925); Greene v. Greene, 150 Pa. Super. 182, 27 A.2d 525

[ 246 Pa. Super. Page 312]

(1942). Furthermore, our courts have held that the mere fact that a support or property agreement is to be performed "only if a divorce decree is entered, or that it is to be inoperative if a divorce is denied or if the plaintiff fails to obtain it by a certain date, does not establish that it is contrary to public policy. . . ." Dora v. Dora, supra, 392 Pa. at 438, 141 A.2d at 591. See Stern v. Stern, supra; Miller v. Miller, supra; see also Weiss v. Weiss, 97 Montg. 54 (Pa.C.P.1973), aff'd per curiam, 458 Pa. 617, 319 A.2d 160 (1974).

The agreement at issue here, which was clearly entered into in anticipation of divorce, was therefore not illegal because made in "contemplation of divorce." Nor was it rendered illegal by the fact that it was conditioned upon the obtaining of a divorce by one of the parties within four months.

Nonetheless, a contract is illegal if it has for its object the procurement of a divorce, as where one spouse agrees to institute a divorce action. Dora v. Dora, supra; Zlotziver v. Zlotziver, supra; Mathiot's Estate, 243 Pa. 375, 90 A. 139 (1914); Commonwealth ex rel. Miller v. Miller, 176 Pa. Super. 64, 106 A.2d 627 (1954); Doering v. Doering, 157 Pa. Super. 9, 41 A.2d 358 (1944). The instant agreement is not illegal on the above basis either; the property settlement agreement entered here does not contain a provision requiring either party to initiate a divorce ...

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