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COMMONWEALTH PENNSYLVANIA EX REL. ELAINE FLEMING v. CHARLES FLEMING (07/17/81)

filed: July 17, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. ELAINE FLEMING, APPELLANT AT NO. 159,
v.
CHARLES FLEMING, APPELLANT AT 151. APPEAL OF ELAINE FLEMING



Nos. 151 and 159 Pittsburgh, 1980, Appeals from the Order of the Court of Common Pleas of Butler County, Civil Division -- Equity, No. 79-031, Book 23, Page 78.

COUNSEL

Dina G. McIntyre, Pittsburgh, for appellant at No. 151 and for appellee at No. 159.

Saul J. Bernstein, Butler, for appellant at No. 159 and for appellee at No. 151.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.

Author: Lipez

[ 288 Pa. Super. Page 505]

On October 27, 1972, Elaine Fleming (Mrs. Fleming), then wife of Charles Fleming (Mr. Fleming), filed a complaint asking for support for herself and the couple's two minor children. On December 12, 1972, the court below ordered Mr. Fleming to pay one hundred dollars per week in support and to make the mortgage payments on the couple's house.

On October 17, 1973, and in anticipation of their impending divorce, the parties entered into a property settlement

[ 288 Pa. Super. Page 506]

    agreement (the Agreement) which required that Mr. Fleming pay to Mrs. Fleming one hundred fifty dollars per week until the couple's then minor daughter reached the age of eighteen and one-half years; thereafter this payment was to be reduced to one hundred twenty-five dollars weekly until the couple's then minor son reached the age of eighteen and one-half years, was graduated from high school or secured full-time employment; and thereafter, two hundred dollars monthly until Mrs. Fleming remarried.*fn1 On the the day the agreement was signed, the daughter was over the age of eighteen and one-half years, and the son was twelve years and ten months old.

The parties were divorced on March 4, 1974. On March 29, 1974, on petition of Mrs. Fleming, the court below entered the Agreement as an order. On May 1, Mr. Fleming petitioned the court below for "temporary relief" from the obligations of the agreement, alleging that his business had been destroyed by fire on March 28, that only part of its value had been insured, and that he was nearly bankrupt. On June 4, 1974, the court ordered Mr. Fleming to pay Mrs. Fleming five hundred dollars monthly from June 1974 through December 1974. On January 21, 1975, Mr. Fleming was ordered to remit monthly payments of six hundred fifty dollars. Finally, on September 5, 1975, the court entered an order (to which both parties had agreed after an unrecorded conference in chambers) requiring, in relevant part, that Mr. Fleming pay Mrs. Fleming two hundred dollars monthly in support of his then minor son, and two hundred dollars

[ 288 Pa. Super. Page 507]

    monthly for the personal use of Mrs. Fleming. The order described itself as a "temporary amendment" of the Agreement. This Order was followed by, inter alia, an "interim Order" dated March 29, 1977, directing Mr. Fleming to pay Mrs. Fleming two hundred dollars monthly for the couple's minor son and two hundred dollars monthly for her personal use.

On January 26, 1979, Mr. Fleming filed a "Petition for Modification" of the Agreement on the grounds that the couple's minor son had reached his eighteenth birthday and had completed his education. The court referred the matter to the county's domestic relations services for hearing. On February 27, 1979, Mrs. Fleming filed a "Motion to determine support under agreement," alleging that Mr. Fleming owed her $5,290.30 under the original terms of the ...


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