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COMMONWEALTH PENNSYLVANIA EX REL. BONA LYNN WERLINE v. WAYNE E. WERLINE. APPEAL BONA LYNN WERLINE (09/23/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 23, 1980.

COMMONWEALTH OF PENNSYLVANIA EX REL. BONA LYNN WERLINE
v.
WAYNE E. WERLINE. APPEAL OF BONA LYNN WERLINE

No. 656 October Term 1979, Appeal from the Order of the Court of Common Please of Bucks County, Criminal, at No. 767 Misc. 1973.

COUNSEL

Richard R. Fink, Levittown, for appellant.

Daniel J. Lawler, Feasterville, for Commonwealth, appellee.

Brosky, Wickersham and Eagen, JJ.*fn*

Author: Per Curiam

[ 280 Pa. Super. Page 573]

This is an appeal from an order granting appellee's petition to terminate an order of support.

On August 22, 1973, appellant, Bona Lynn Werline, and appellee, Wayne C. Werline, submitted an agreement to the Court of Common Pleas of Bucks County for appellant's support. An order of support was then entered. Both the agreement and the order were contained on the same Domestic Relations Department form. The following provision immediately followed the body of the agreement and overlapped the heading of the order:

"Order shall not terminate upon divorce of the parties and the obligation to make payment however shall continue until such time as prosecutrix remarries or her disability terminates and she is able to be gainfully employed."

In October of 1973, a decree of divorce was entered. In October of 1978, appellee fled a petition to terminate the support order, arguing that the court was not empowered to

[ 280 Pa. Super. Page 574]

    enforce the order after the parties' divorce. Appellant defended by asserting that the support order continued to be enforceable due to the inclusion of the clause providing that the order would not terminate upon divorce, but would continue until appellant remarried or regained employability after the termination of her disability.

On February 27, 1979, appellee's petition was granted, and we now affirm that order.

While it is unclear whether the provision in question was made a part of the order of the court, it is, in any event, unenforceable under the Civil Procedural Support Law (Support Law).*fn1 Both the present proceeding and the proceeding in which the order for support was granted were brought under the Support Law. It has been consistently determined that the purpose of the Support Law was to establish procedure for enforcement of existing support rights and was not intended to create new rights of support. Commonwealth ex rel. Krouse v. Krouse, 221 Pa. Super. 13, 289 A.2d 233 (1972); Commonwealth ex rel. Jones v. Jones, 216 Pa. Super. 1, 260 A.2d 809 (1969). The substantive right of a spouse to support exists by virtue of both the common law*fn2 and statute.*fn3 However, this substantive right to support terminates upon divorce. Commonwealth ex rel. Smith v. Smith, supra; Commonwealth ex rel. Jones v. Jones, supra; Commonwealth ex rel. McVay v. McVay, 177 Pa. Super. 623, 112 A.2d 649 (1955), affirmed 383 Pa. 70, 118 A.2d 144, certiorari denied, 350 U.S. 995, 76 S.Ct. 544, 100 L.Ed. 860 (1956). In Pennsylvania, an obligation to support a former spouse is only created by contract, and such a contractual

[ 280 Pa. Super. Page 575]

    right has been found unenforceable in an action under the Support Law. See Commonwealth ex rel. Jones v. Jones, supra.*fn4

Thus, in a proceeding under the Support Law, a court could not lawfully order that the payment of support to a spouse continue after a valid divorce has been entered, nor could such a provision be enforced under that law. See Commonwealth ex rel. Jones v. Jones, supra. See also Commonwealth ex rel. Roviello v. Roviello, supra.


*fn* Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania is sitting by designation.


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