No. 413 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, at No. M41 of 1978 in Equity
Arnold M. Epstein, Pittsburgh, for appellant.
John L. Bailey, Pittsburgh, for appellees.
Spaeth, Wickersham and Lipez, JJ.
[ 280 Pa. Super. Page 98]
This is an action in equity. The lower court sitting en banc dismissed exceptions to the chancellor's decree nisi and denied the plaintiff, who is appellant here, any relief. The complaint is that a transfer by appellee should be declared in fraud of creditors, and that appellee should be required to pay arrearages allegedly due under a separation agreement.
Appellant and appellee were married on July 19, 1959. They had three children. On June 17, 1976, they entered into a separation agreement by which appellee agreed to pay $210.00 per week for the support of the parties' three children. On October 6, 1976, the parties were divorced. Shortly after the divorce, appellee began to accrue arrearages on his support obligation. Appellant petitioned the lower court for support, and on February 28, 1977, the court ordered appellee to pay $600.00 per month for the support of the children. Appellant then brought an action in equity for the specific enforcement of the separation agreement. On March 28, 1977, the lower court vacated its order of February 28, 1977; ordered that appellee pay $210 per week for the support of the parties' three children, and that the separation agreement be specifically enforced; determined that appellee's arrearages on his support obligation under
[ 280 Pa. Super. Page 99]
the agreement amounted to $1,935.00; and entered judgment against appellee in that amount. On April 29, 1977, appellee paid the judgment.
In August 1977 appellee married his present wife, Arlene Bales. Before their marriage they had agreed to place their individual property in joint names. After their marriage, in fulfillment of this agreement, appellee transferred 80% of his sole shareholder interest in Samuel Bales, Inc., to Arlene Bales and himself as tenants by the entireties and 10% to each of his two sons by his prior marriage, and Arlene Bales transferred her house and lot to appellee and herself as tenants by the entireties.
On January 30, 1978, appellant filed the complaint on which the present action is based. The complaint alleges that by virtue of the lower court's order of March 28, 1977, appellee is obliged to pay $210 per week for the support of the parties' three children; that as of August 1977, when appellee married Arlene Bales, appellee was in arrears on his support obligation; and that appellee's transfer of his interest in Samuel Bales, Inc., to Arlene Bales and himself as tenants by the entireties was in fraud of creditors in that appellee was insolvent at the time of the transfer, or was rendered insolvent by it, and also in that the transfer was without fair consideration.
On September 20, 1978, after hearing testimony, the chancellor filed his decree nisi, accompanied by an opinion. The chancellor refused to set aside appellee's transfer of his interest in Samuel Bales, Inc., finding that the transfer had been for fair consideration, namely, appellee's new wife's property, and did not render appellee insolvent, and also, that appellee had no actual intent to defraud appellant. The chancellor also refused to order appellee to pay any support under the separation agreement, stating that "the agreement is not fair and the Court will not enforce it." Record at 110a. The chancellor concluded his opinion by referring to the order of February 28, 1977, stating that that ...