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NANCI ANN HOPKINSON v. JOHN HEBDEN HOPKINSON (01/06/84)

filed: January 6, 1984.

NANCI ANN HOPKINSON
v.
JOHN HEBDEN HOPKINSON, III, APPELLANT. NANCI ANN HOPKINSON V. JOHN HEBDEN HOPKINSON, III, APPELLANT. NANCI ANN HOPKINSON V. JOHN HEBDEN HOPKINSON, III. APPEAL OF ABINGTON OB/GYN, LIMITED PENSION PLAN



APPEAL FROM THE ORDER ENTERED JUNE 8, 1983 IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, CIVIL NO. 81-10876. APPEAL FROM THE ORDER ENTERED JUNE 2, 1983 IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, CIVIL NO. 81-10876. APPEAL FROM THE ORDER ENTERED JUNE 2, 1983 IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, CIVIL NO. 81-10876

COUNSEL

Frank L. Newburger, III, Philadelphia, for appellant (at Nos. 1501 & 1662) and for appellee (at No. 1786).

Randal J. McDowell, Jenkintown, for appellant (at No. 1786).

John H. Martin, III, Norristown, for Nanci Hopkinson, appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Cirillo

[ 323 Pa. Super. Page 408]

The parties in this action were married on June 22, 1957 and divorced on May 1, 1978. They adopted two children, John and Elizabeth, during the marriage, both of whom are minors. On February 28, 1978 the parties entered into a written agreement which, inter alia, provided that the husband pay to the wife an annual sum of $23,500.00, installments to be paid weekly, together with an amount equal to the federal, state and local income taxes owed by the wife. In addition, the agreement stipulated that the husband was to pay the wife $5000.00 per year, payable weekly, as support for each unemancipated child. Pursuant to the agreement, the wife had custody of both children. Subsequent to the divorce, however, John expressed a desire to reside with the husband. Consequently, the parties entered into an agreement on April 12, 1979 which ratified the earlier agreement, except for the change in John's custody. Included in this second agreement was a provision that, notwithstanding the change in custody, the husband was still required to pay $5000.00 per annum to the wife for the support of their son John.

The wife filed a Complaint in Equity in the Court of Common Pleas of Montgomery County on June 5, 1981,

[ 323 Pa. Super. Page 409]

    alleging that the husband was in breach of his obligations under the property settlement agreement. On February 11, 1982 the parties appeared before the Honorable Horace A. Davenport and agreed to the entry of a consent decree. Judge Davenport's decree, dated February 12, 1982, ordered the husband to pay the wife the sum of $21,541.91 forthwith and to comply thereafter in all respects with the agreement of February 28, 1978, as amended on April 12, 1979.

On August 13, 1982 the wife filed a petition for reduction of arrearages to judgment. The court entered an order on August 27, 1982 directing that judgment be entered against the husband in the amount of $12,642.18. This total represents arrearages due under the consent decree for the period of February 12, 1982 through August 20, 1982.

On October 20, 1982 the wife filed a petition seeking to hold the husband in contempt of court based on his willful violation of the consent decree. A hearing was held on November 23, 1982 before the Honorable Louis D. Stefan. At the hearing the wife established the claims of nonpayment set forth in her petition while the husband testified as to his inability to meet his obligations. At the conclusion of this hearing, the court decided that the husband had failed to make a reasonable attempt at complying with the consent decree and found him in contempt. By Order dated March 2, 1983, the husband was to pay $5000.00 to the wife within 30 days and the remaining arrearages within 120 days, and to comply with the terms of the consent decree in a timely fashion thereafter. The husband appealed this Order to the Superior Court. By an Order dated April 27, 1983, this Court quashed the appeal. A hearing was then held before Judge Stefan to determine the sanctions to be imposed by reason of the husband's failure to comply with the Order of March 2, 1983. By Order of June 8, 1983 Judge Stefan committed the husband to the county prison each weekend, until such time as he purged himself of the contempt by paying the sum of $5000.00 to the wife. The husband appealed this Order to the Superior Court.

[ 323 Pa. Super. Page 410]

Meanwhile, in November, 1982 a Writ of Execution was served, inter alia, on Abington OB/GYN, Ltd. Pension Plan and Profit Sharing Plan and interrogatories addressed to the garnishee were propounded. Both the husband and the garnishee filed preliminary objections to the interrogatories, alleging that the Writ of Execution and the interrogatories were improperly served and that the pension fund is immune from attachment. These preliminary objections were dismissed by the Honorable Samuel W. Salus, II in an Order dated June 2, 1983. The husband and the garnishee appealed this Order to the Superior Court. All appeals were subsequently consolidated for disposition by this Court. See: Pa.R.A.P. 513; 42 Pa.C.S.A.

The first issue on appeal concerns the propriety of the lower court order holding the husband in contempt and the sanction of imprisonment on weekends until he purges himself of the contempt. The lower court relies on Section 501(f) of the Divorce Code*fn1 as authority to imprison the husband. This section provides:

(f) Whenever the court shall approve an agreement for the payment of alimony voluntarily entered into between the parties, such agreement shall be deemed the order of the court and may be enforced as provided in section 503.

The lower court concluded that the consent decree, ordering the husband to comply with the terms of the property settlement agreement, constituted court approval under section 501(f), and thus, the agreement may be enforced pursuant to Section 503 of the Divorce Code.*fn2 This section authorizes imprisonment for willful failure to comply with a court-approved agreement for the payment of alimony. However, Section 103 of the code*fn3 provides in pertinent part:

[ 323 Pa. Super. Page 411]

    date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.

The parties were divorced and the property settlement agreement was executed and amended before the Divorce Code became effective in July of 1980. Therefore, the court ...


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