No. 89 January Term, 1979, Appeal From the Order of the Superior Court of Pennsylvania, October 2, 1978 at No. 539 October Term, 1978 Affirming the Order Entered November 16, 1977, by the Court of Common Pleas, Civil Action - Equity, of Cumberland County at No. 59 of 1976. No. 90 January Term, 1979, Appeal From the Order of the Superior Court of Pennsylvania entered October 20, 1978, at No. 1473 October Term, 1977 affirming the Order of the Court of Common Pleas of Cumberland County entered March 30, 1978 at No. 208 September Term, 1972.
Richard C. Snelbaker, Mechanicsburg, for Larry E. Hall.
Richard C. Angino, Neil J. Rovner, Harrisburg, for Ruth A. Brown.
Kauffman, Justice. Larsen, J., files a concurring and dissenting opinion.
Before us are two separate appeals which have been consolidated for argument because of the identity of parties, factual background and subject matter. Essentially at issue is whether the child support provision of a separation agreement is enforceable in equity despite the existence of a later order entered in an independent action for support directing husband to pay a lesser amount.
Early in 1972, Ruth A. Hall (now Ruth A. Brown) ("wife") instituted support proceedings against her then husband, Larry E. Hall ("husband") for herself and their two minor children. On July 11, 1972, the Court of Common Pleas of Cumberland County ordered husband to pay $105 per week. On October 24, 1973, after many months of negotiations, the parties, each with the advice of counsel, executed a nineteen paragraph separation agreement which covered all aspects of the economic relationships between them, including the amount to be paid by husband for future support of the children:
4. Husband agrees to pay to wife for the support of the wife and two minor children the sum of One Hundred Five ($105.00) Dollars per week. In the event an action for divorce is instituted and followed through to completion, husband will pay to wife, after the divorce action has been finalized, the sum of Ninety ($90.00) Dollars per week for the support of the two minor children. (Emphasis supplied).
The parties were divorced on January 7, 1974, and husband began making the $90 payments. Shortly thereafter, on February 25, 1974, the parties entered into a stipulation agreeing to modify the July 11, 1972 support order to delete wife and to provide support for the minor children only, and the court reduced the order to $90 per week.
Husband quickly fell behind in the support payments.*fn1 At a contempt hearing on April 20, 1975, the support court reduced the support order to $80 per week, and on September 9, 1975, further reduced the order to $55 per week. Wife appealed the latter order to the Superior Court, which reversed and remanded on September 27, 1976. Commonwealth ex rel. Hall v. Hall, 243 Pa. Super. 162, 364 A.2d 500 (1976). On remand, the support court directed husband to pay $65 per week, and wife again appealed. On October 20, 1978, the Superior Court affirmed, 259 Pa. Super. 214, 393 A.2d 794 (1978), and wife here challenges that order.
In December 1976, during the pendency of the support proceedings, wife commenced an action in equity to compel specific performance of the October 1973 separation agreement.*fn2 In July 1977, the chancellor, after hearing, granted ...