No. 03405 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 78-20040 Civil.
Dona S. Kahn, Philadelphia, for appellant.
James J. Garrity, Norristown, for appellee.
Wickersham, Wieand and Lipez, JJ.
[ 339 Pa. Super. Page 131]
Irving Madnick filed this equity action against his former wife Eileen Madnick, seeking to have the marital residence sold under the parties' property settlement agreement, and to have a resulting or constructive trust in 50% of the proceeds of the sale imposed for Irving's benefit. Eileen counterclaimed for enforcement of another term of the settlement agreement, providing for Irving to pay $200 per week child support. Judge Lowe's decree nisi granted Irving's request, but denied Eileen's counterclaim. After
[ 339 Pa. Super. Page 132]
denial of Eileen's exceptions and entry of a final decree, Eileen filed this appeal, contending that Judge Lowe erred both in granting Irving a resulting trust in 50% of the proceeds of the house, and in denying Eileen's counterclaim for $200 support. We find that Judge Lowe's opinion thoroughly disposes of the first issue, and there is no need for additional comment on it.
Regarding the second issue, the tenth section of the comprehensive separation agreement between Irving and Eileen provided in pertinent part:
(a) Husband agrees to pay, upon execution of this Agreement, on behalf of the children for their care, support and maintenance, the sum of $200.00 per week.
(b) Husband agrees to sign a Stipulation entering the $200.00 per week as a Court Order in the Court of Common Pleas of Philadelphia County, a true and correct copy of which is attached hereto and made Exhibit "A".
Pursuant to paragraph (b), the $200.00 per week support was entered as a court order, but was later suspended by the court for a period, and then reinstated at a reduced rate.
Because of the suspension and reduction of the amount of court-ordered support, Eileen's counterclaim for $200.00 per week support was based on the contractual liability created by paragraph (a) above. Eileen argued in the court below that Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), allowed enforcement of the contractual liability for support, apart from the liability created by having the stipulated support entered as a court order. Judge Lowe distinguished Brown v. Hall, supra, on the ground that in that case, the court order for support pre-dated the agreement, while here the agreement was formed before being entered as a court order, and therefore the agreement merged into the court order for support. In the identical situation in Millstein v. Millstein, 311 Pa. Super.Ct. 495, 457 A.2d 1291 (1983), this court ...