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PATRICIA L. LITWACK v. GERALD LITWACK (08/07/81)

filed: August 7, 1981.

PATRICIA L. LITWACK, APPELLANT,
v.
GERALD LITWACK



No. 2927 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 80-5673.

COUNSEL

Howard Richard, Media, for appellant.

Jack A. Rounick, Norristown, for appellee.

Wickersham, McEwen and Wieand, JJ. McEwen, J., files a dissenting statement.

Author: Wieand

[ 289 Pa. Super. Page 407]

In this appeal from a declaratory judgment, we have been asked to determine whether a contractual duty to support a former wife "until she shall remarry . . ." is terminated by her unmarried cohabitation with another man. The trial court equated unmarried cohabitation with marriage and held that the duty of support was thereby terminated. We disagree and reverse.

On January 26, 1973, prior to divorce, Patricia L. Litwack, appellant, and Gerald Litwack, appellee, executed a separation agreement which provided, inter alia, that he would make monthly support payments to her "until she shall remarry, die, reach the age of sixty-two (62) or shall first be eligible for Social Security payments, whichever shall first occur . . . ." Appellee continued to make these payments until October, 1979, when he discovered that appellant had lived with another man from December, 1978 to August, 1979.*fn1 He contended then, as he does in this Court, that appellant's cohabitation with a person of the opposite sex was equivalent to remarriage and relieved him of any further contractual obligation of support. Appellant filed a petition for declaratory judgment in order to obtain a judicial interpretation of the contract.

In construing a separation agreement a court must adopt that construction which gives effect to the parties' reasonable and probable intent, in view of the surrounding circumstances and purposes of the contract. Kohn v. Kohn,

[ 289 Pa. Super. Page 408242]

Pa. Super. 435, 442, 364 A.2d 350, 353 (1976). See also: Wiegand v. Wiegand, 349 Pa. 517, 37 A.2d 492 (1944). In a written contract the intent of the parties is the writing itself, and when the words are clear and unambiguous the intent is to be determined only from the express language of the agreement. R. F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973); East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965); Redevelopment Authority of the City of Johnstown v. Tross, 20 Pa. Commw. 103, 340 A.2d 652 (1975). When the terms of a written contract are clear, this Court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used. Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977); R. F. Felte, Inc. v. White, supra 451 Pa. at 144, 302 A.2d at 351; East Crossroads Center, Inc. v. Mellon-Stuart Co., supra; Hagarty v. William Akers, Jr. Co., Inc., 342 Pa. 236, 20 A.2d 317 (1941).

The meaning of the verb "marry" is clear. Black's Law Dictionary (Fifth ed. 1979) defines marriage as the "legal union of one man and one woman as husband and wife." This legal union entails certain duties and responsibilities, including a duty of financial support, which do not arise from cohabitation alone.

The parties' intent, as expressed in their separation agreement, is equally clear. So long as appellant lived and was not eligible to receive social security, appellee agreed to provide support for his former wife unless the legal obligation for appellant's support were transferred to another by a contract of marriage. Unmarried cohabitants may voluntarily contribute to the support of each other, but there is no legal obligation to do so, whether it be during cohabitation or after separation. In the instant case, for example, neither of the unmarried cohabitants assumed legal responsibility for the temporary or permanent support of the other. If appellee's contractual duty were to be deemed terminated ...


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