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HELEN B. EANNARINO v. AUGUST V. EANNARINO (01/05/82)

filed: January 5, 1982.

HELEN B. EANNARINO,
v.
AUGUST V. EANNARINO, APPELLANT



No. 265 Pittsburgh, 1980, Appeal from the Order of March 12, 1980, of the Court of Common Pleas of Allegheny County Pennsylvania, Family Division, at No. M 119 of 1978

COUNSEL

Stewart B. Barmen, Pittsburgh, for appellant.

John L. Bailey, Pittsburgh, for appellee.

Spaeth, Shertz and Montgomery, JJ. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.

Author: Shertz

[ 294 Pa. Super. Page 82]

This is an appeal from an Order compelling Appellant to make alimony payments to Appellee, his ex-wife, in accordance with a separation agreement dated June 5, 1972. The

[ 294 Pa. Super. Page 83]

Chancellor concluded that social security benefits to Appellant were to be considered as "net earnings after taxes" under the terms of the agreement. We agree and therefore affirm.

On March 6, 1978, Appellee brought an action in equity to compel Appellant to provide income tax returns and to make payments in accordance with the separation agreement. Following a hearing, the Chancellor entered an adjudication and decree nisi, on March 20, 1979, ordering Appellant to make payments in accordance with the separation agreement, which payments were calculated by including social security benefits as net income after taxes. On September 17, 1979, the Chancellor entered a supplemental adjudication ordering Appellant to pay Appellee the sum of $7,560.00 based upon a monthly support payment of $360.00 for the period from January 1, 1978, through September, 1979. Appellant filed exceptions to the supplemental adjudication contending that the court erred in including the social security benefits as net income after taxes.

After argument on the exceptions, Appellant filed a petition for reconsideration and on January 7, 1980, the Chancellor entered a Supplemental Decree Nisi on reconsideration, reducing the arrearage to $6,192.40 based on social security payments received directly by Appellee as a consequence of contributions made by Appellant during his years of employment. Appellant timely filed exceptions to the Supplemental Decree Nisi. On March 12, 1980, the court en banc dismissed Appellant's exceptions and ordered that the Supplemental Decree Nisi be entered as a final decree. The order of March 12, 1980, was docketed on March 13, 1980, as required by Pa.R.A.P. 301(c). See Murray v. Abcon, Inc., 291 Pa. Super. 428, 435 A.2d 1301 (1981). This appeal followed.

The sole issue before us on appeal is whether, under the terms of the agreement of June 5, 1972, Appellant's

[ 294 Pa. Super. Page 84]

    social security and pension benefits should be included as "net ...


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