No. 59 APRIL TERM, 1977, Appeal from an Order of the Court of Common Pleas, Family Division of Allegheny County at No. M21 of 1976.
Louis C. LaLumere, Pittsburgh, for appellant.
Joanna Ross Wilder, Pittsburgh, Michael A. Donadee, on the brief, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion.
[ 251 Pa. Super. Page 517]
On November 20, 1975, the parties to this dispute entered into a post-nuptial agreement for the support of appellant in anticipation of a divorce which was granted in December of that year. By the terms of the agreement, appellant was to make specified repairs on their home property and transfer title to appellee. He was also to pay the outstanding medical bills of appellee and to pay her $1,000 in cash and $200 a month thereafter during her lifetime or until she should remarry.
On January 20, 1976, appellee filed a complaint in the Court of Common Pleas of Allegheny County, Family Division, alleging non-compliance with the separation agreement and seeking an order of enforcement. Appellant filed preliminary objections to the effect that the court had no equity jurisdiction because there was an adequate remedy at law and that the post-nuptial agreement was unenforceable because a violation of the public policy of Pennsylvania. On
[ 251 Pa. Super. Page 518]
March 2, 1976, these objections were overruled and the court entered an order decreeing specific performance of the post-nuptial agreement and entering judgment for the amount then in arrears.
On June 23, 1976, appellee filed a petition asking that appellant be held in contempt of court for failure to comply with the order of March 3. A rule to show cause issued and a hearing was held on August 10, 1976, to consider the contempt petition. At that hearing the parties negotiated a settlement of their differences and drafted a consent order which they presented to the court for entry. Before signing the order, Judge John Brosky directed counsel for each party to ask his client if he agreed to the consent order and both so indicated. The Judge thereupon entered the order in the exact wording proposed by counsel for the parties. The substance of the order was to drop the claim for certain arrearages as unproved, to direct the payment of others and to reaffirm appellant's obligation to comply with the post-nuptial agreement.
Appellant appeals from this consent order, reiterating the contention made by him prior to the March order that the court has no jurisdiction in equity and that at the August hearing appellant was not afforded the hearing required before he could be adjudged to be in contempt of the court. However, the latter issue became moot when the parties agreed to a consent order.
We are met at the threshold of this case by the fact that this is an appeal from a consent order drafted with the collaboration of appellant's counsel and to which both appellant and his counsel agreed in the court below. In an opinion filed in support of his order, Judge Brosky concluded with this statement:
"In view of both counsels' representation to this court that they were proposing a consent order, and, in view of their colloquy with their clients which appears on record, this court accepted and signed their consent order. Thereafter, no objection was made thereto by either ...