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TERESA MILLSTEIN v. DAVID M. MILLSTEIN (03/11/83)

filed: March 11, 1983.

TERESA MILLSTEIN
v.
DAVID M. MILLSTEIN, APPELLANT



No. 1488 PHILADELPHIA 1982, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil at No. 79 - 114 - 10 - S.

COUNSEL

Mindy M. Brook, Langhorne, for appellant.

Samuel M. Snipes, Yardley, for appellee.

Spaeth, Rowley and Van der Voort, JJ.

Author: Spaeth

[ 311 Pa. Super. Page 497]

This is an appeal from an order denying a petition to reduce a child support order and remit arrearages. Before the child support order was entered, appellant agreed, as part of a separation agreement, to pay child support of $120 per week. This agreement was then entered in the form of a child support order. In his petition to reduce, appellant pleaded that because of changed circumstances he could no longer afford to pay $120 per week. The lower court held that under Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), appellant was bound by the separation agreement. We affirm.

Appellant argues (1) that because his petition was to reduce a child support order, the lower court did not have subject matter jurisdiction to consider the separation agreement; and (2) that the separation agreement did not preclude him from proving changed circumstances, thereby fixing an amount beneath which his support obligation could not go.

On January 14, 1980, the parties entered into a separation agreement. By Article IX of the agreement appellant promised to pay $120 per week for the support of his daughter, "and the foregoing sum of $120.00 per week shall be entered in the form of a Court Order . . . . Said support shall continue so long as the child is living, unmarried and under the age of eighteen years or otherwise unemancipated." Article XXVIII provided that "each paragraph hereof shall be deemed to be a separate and undisputed covenant and agreement . . . ." Article XXV provided that "[n]o modification or waiver of this Agreement or of any part thereof shall be valid or effective unless in writing signed by the party sought to be charged therewith . . . ." And Article II provided that "[t]his Agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted, and represented by 'HUSBAND' and 'WIFE,' each to the other, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the

[ 311 Pa. Super. Page 498]

    specific purpose of inducing 'HUSBAND' and 'WIFE' to execute the Agreement."

On January 28, 1980, the amount of $120 per week for child support was entered as a court order, as provided in the separation agreement. On June 30, 1980, the parties were divorced. Appellant paid the agreed amount of $120 per week for child support until September 1981. In November 1981 he filed a petition to reduce the support order of January 28, 1980, and to remit arrearages, alleging that on September 11, 1981, his employer had gone into bankruptcy and he had lost his job and was unable to pay the $120 per week child support. After a hearing on March 18, 1982, the lower court dismissed the petition to reduce and directed that the arrearages be remitted at the rate of $20 per week until paid in full. In the opinion accompanying its order the lower court found that appellant had lost his job and had gotten a new, lower-paying, job. However, the court made no findings on whether, if the parties had not entered into the separation agreement, appellant's change of circumstances would have entitled him to a reduction in his child support obligation. Instead, the court held that the issue was "whether [it had] the power to modify or alter Article IX" of the separation agreement, Slip op. at 5, and that under Brown v. Hall, supra, it did not.

1

In support of his argument that the lower court did not have subject matter jurisdiction to consider the separation agreement, appellant relies on Guerin v. Guerin, 296 Pa. Super. 400, 442 A.2d 1112 (1982). We have concluded, however, that Guerin is distinguishable. In explaining this conclusion, it will be convenient first to state Brown v. Hall, supra, and then return to Guerin.

In Brown, the facts were as follows. Early in 1972, Mrs. Hall instituted a support proceeding against her husband for herself and their two children. In July 1972 the lower court ordered Mr. Hall to pay $105 per week in support. In October 1973 the parties entered into ...


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