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CYNTHIA A. VANKIRK v. ALAN R. VANKIRK (12/14/84)

filed: December 14, 1984.

CYNTHIA A. VANKIRK
v.
ALAN R. VANKIRK, APPELLANT



No. 00196 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Allegheny County, Family Division, at No. FD81-435.

COUNSEL

Max A. Levine, Pittsburgh, for appellant.

Kenneth M. Steinberg, Pittsburgh, for appellee.

Brosky, Tamilia and Roberts, JJ.

Author: Brosky

[ 336 Pa. Super. Page 504]

The question before us in this appeal is whether an agreement calling for the payment of alimony is avoidable by the spouse obligated to make the payment when his former spouse cohabits with a member of the opposite sex. We find that the agreement before us is not avoidable and therefore affirm.

The parties were married on May 12, 1976 and a divorce complaint was filed by appellee wife on January 16, 1981. Following conciliation the parties reached an agreement which is contained in the following consent order:

After conference with all parties, it is hereby ordered, adjudged and decreed that defendant shall pay to plaintiff alimony in the amount of $325.00 per month for 18 months to begin immediately. In consideration, plaintiff will withdraw her claim for equitable distribution of property and counsel fees. The parties agree that this order constitutes a full settlement of all claims between the parties and that the within alimony award is not subject to modification. Wage attachment dissolved. Arrearages are set at $450.00 to be paid off at $75.00 per month.

Both parties, and their counsel signed the consent order. When appellant ceased to make payments, appellee sought enforcement and hearings were held by a hearing officer who made the factual finding that Mrs. VanKirk had cohabited with a man from October, 1981 to at least September, 1982. It was, however, the hearing officer's recommendation that Mr. VanKirk's obligation to make the payments called for in the agreement was unaffected by that cohabitation.

The trial court dismissed exceptions filed by Mr. VanKirk to the hearing officer's recommendation and this appeal followed.

[ 336 Pa. Super. Page 505]

Appellant contends that his obligation to make what the agreement terms "alimony" payments should cease pursuant to the terms of Section 507 of the ...


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