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filed: March 19, 1982.


No. 1857 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Family Court Division, Philadelphia County, No. 481 September Term, 1975.


Ralph M. Evans, Philadelphia, for appellant.

Timothy J. Savage, Philadelphia, for appellee.

Cavanaugh, Johnson and Lipez, JJ.

Author: Lipez

[ 296 Pa. Super. Page 401]

This is an assumpsit action by plaintiff Regina Guerin to enforce a private support agreement by which defendant Robert Guerin agreed to pay Regina $160 per week support for their minor children. The agreement was executed in December, 1974, following the parties' divorce the previous month. At the time the agreement was executed, Robert had already been paying $160 per week support for about six months. These payments were pursuant to a support order entered by agreement of the parties in the domestic relations branch of the family court division of common pleas court in July, 1974.

[ 296 Pa. Super. Page 402]

In February, 1975, Robert petitioned the domestic relations branch to reduce the amount of the support order because of a change of circumstances. Judge Rosenberg reduced the amount of the support order to $125. When Robert reduced his weekly payments to $125, Regina brought this assumpsit action in the trial division of common pleas court, to enforce the December, 1974 private agreement for $160 per week. The court below transferred the matter to the family court division, reasoning that it belonged there because it involved support. The administrative judge of the family court division then granted Robert's motion for non-suit and dismissed the complaint, and Regina took this appeal.

The opinion of the court below relies on Bria v. Bria, 464 Pa. 247, 346 A.2d 542 (1975), Commonwealth ex rel. Balph v. Balph, 210 Pa. Super.Ct. 244, 232 A.2d 76 (1967), and Commonwealth ex rel. Snively v. Snively, 206 Pa. Super.Ct. 278, 212 A.2d 905 (1965) for the proposition that a court may refuse to enforce a private support agreement if a party has a change of circumstances resulting from factors beyond his control. The court reasoned that this appeared to be what Judge Rosenberg had done in reducing the court-ordered support to $125 per week. Since that order had not been appealed, the court below held it was res judicata, and entered the non-suit. In this appeal, Regina argues: (1) that the cases on which the lower court relied for its holding concerning nonenforceability of the private support agreement are factually distinguishable from this case; and (2) that Judge Rosenberg's determination was not res judicata, as the private agreement could not be raised before him, but had to be enforced by bringing this separate action. We agree with both arguments.

The facts here are essentially similar to those in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). In that case,*fn1 both a court order and a separate private agreement required the husband to pay $90 per week support. The

[ 296 Pa. Super. Page 403]

    husband petitioned for a reduction in the amount of court-ordered support, and the support court ordered a reduction. Later, the wife brought a separate action in equity to enforce the private agreement for $90 per week, and the chancellor ordered enforcement. The Supreme Court held that the chancellor was correct, stating:

In the absence of an uncounseled, one-sided bargain as in Bria [v. Bria, 95 Dauph. 358 (1973), aff'd per curiam, 464 Pa. 247, 346 A.2d 542 (1975)], and where no one argues that $90 per week is inadequate to support the children, we must enforce the parties' intention as mutually expressed in the separation agreement.

Brown v. Hall, supra, 495 Pa. at 643, 435 A.2d at 863 (emphasis in original; footnote omitted).

This describes precisely the case before us. There is no uncounseled, one-sided agreement as in Bria,*fn2 the first case relied on by the court below. There is no argument that the amount of support set in the private agreement is inadequate to support the children, as in Balph and Snively, the other two cases cited by the lower court. Brown v. Hall, supra, 495 Pa. at 643 & nn. 10-11, 435 A.2d at 863 & nn. 10-11, therefore compels the conclusion that the private support agreement here is enforceable.

It is also clear that Judge Rosenberg's order lowering court-ordered support was not res judicata of the issue of enforceability of the private agreement, because that issue could not be raised before Judge Rosenberg. As Judge Spaeth recently observed in a concurring statement for the majority of a panel of this court:

Until and unless the terms of a private agreement have been embodied in a court order, however entered, whether

[ 296 Pa. Super. Page 404]

    by consent or not, the holding of Commonwealth ex rel. Jones v. Jones, 216 Pa. Superior Ct. 1, 260 A.2d 809 (1969), is clear: a private support agreement that has not been entered as a court order may not be enforced as a support order but may only be the subject of a law suit, like any other private agreement.

Commonwealth ex rel. Durso v. Durso, 292 Pa. Super.Ct. 94, 99-100, 436 A.2d 1021, 1024 (1981) (concurring statement by Spaeth, J., joined by Cavanaugh, J.). The correctness of Judge Spaeth's conclusion for the majority in Durso*fn3 is implicit in Brown v. Hall, supra, since the Court there held the private agreement enforceable in an action*fn4 separate from the proceeding in which the amount of court-ordered

[ 296 Pa. Super. Page 405]

    support had been lowered. This case must therefore be remanded for trial in assumpsit.

Order reversed, non-suit removed, complaint reinstated, and case remanded for further proceedings.

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