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EILEEN M. SCHMITZ v. GEORGE F. SCHMITZ (10/08/82)

filed: October 8, 1982.

EILEEN M. SCHMITZ,
v.
GEORGE F. SCHMITZ, APPELLANT V. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY



No. 1124 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Family Division, Allegheny County, No. M666 of 1978.

COUNSEL

Stephen Israel, Pittsburgh, for appellant.

Franklyn E. Conflenti, Pittsburgh, for appellee.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Montemuro

[ 305 Pa. Super. Page 329]

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing appellant's preliminary objections to the appellee's attempted garnishment of the cash surrender value of life insurance policies owned by appellant.

The facts involved in the instant case are not in dispute. Appellant, Dr. George F. Schmitz, and appellee, Eileen M. Schmitz, were married on July 30, 1960. Sixteen years later, marital difficulties precipitated appellee to file a complaint for support in the Family Division of the Court of Common Pleas for herself and the couple's three daughters. On March 10, 1976 a consent order was entered by the court which was subsequently modified on July 27, 1976, reducing appellant's support payments. This order was later superceded

[ 305 Pa. Super. Page 330]

    by a separation agreement entered into between the parties which settled the disposition of mutual property rights, custody of the children and support of both appellee and the children. The marriage ended with the entry of a decree in divorce on November 10, 1976.

Sometime after the final decree of divorce was entered all three children took up residence with their father in San Antonio, Texas. In light of this development, appellant believed that his support obligations to appellee terminated under the separation agreement and he ceased payments. Pursuant to the Separation Agreement, the matter was then submitted to arbitration on July 28, 1978. The arbitrator found that appellant was still obliged to provide support for appellee but reduced the monthly payments. Appellant refused to abide by that decision. On November 16, 1978 appellee filed suit in the Family Division of the Court of Common Pleas to enforce the separation agreement as modified by the arbitrator's award. On February 20, 1979 a default judgment was entered against appellant based upon his failure to answer or otherwise plead to the complaint. A final decree was entered on the default judgment requiring appellant to provide appellee with monthly payments as set forth by the arbitrator's award and to pay over a certain sum due as a consequence of appellant's noncompliance. To recover on the judgment, appellee initiated execution proceedings and garnished the cash surrender value of two life insurance policies owned by appellant. The appellant responded with preliminary objections to the garnishment which the court below dismissed on December 19, 1979. On January 4, 1980 appellee entered judgment against the garnishee, Provident Life and Accident Insurance Company. Thereafter, by agreement of the parties, the order of the court of December 19, 1979 was stayed and a supercedeas was issued pending this appeal.

The sole contention raised by appellant is that the lower court erred in finding that the cash surrender value of the life insurance policies was property which could be

[ 305 Pa. Super. Page 331]

    properly subjected to garnishment. We agree and ...


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