No. 01280 Pitts., 1983, Appeal from the Order of September 27, 1983 in the Court of Common Pleas of Allegheny County, Family Division at No. FD 81-10839.
J. Kerrington Lewis, Pittsburgh, for appellant.
Edward C. Milburn, Pittsburgh, for appellee.
Brosky, Johnson and Watkins, JJ. Brosky, J., files a concurring opinion.
[ 339 Pa. Super. Page 119]
The question raised by this appeal is whether an agreement between parties to a divorce which disposed of alimony and equitable distribution of marital property which was reduced to a consent order by the court below may be modified.
The facts are: The parties were divorced on September 23, 1982. A conciliation was held before the Honorable Lawrence W. Kaplan to determine permanent alimony and equitable distribution on January 13, 1983. The parties entered into a consent order resolving the wife's claims for equitable distribution and permanent alimony. The consent order required the husband to pay the wife $2000.00 within thirty (30) days of the date of the order and $3000 in July, 1983 on the equitable distribution issue. The husband was obligated to pay $300.00 per month alimony for five (5) years from January, 1983 until the wife dies, remarries or cohabitates for a period of thirty (30) days. Both parties were represented and entered into this consent order with the advice of counsel.
Plaintiff-wife, Ann Stanley, was 62 years of age; appellant-husband, Lee Stanley, was 66 years of age.
On March 10, 1983 the wife filed a petition for Rule to Show Cause Why husband should not be held in contempt in that he has failed to pay monthly alimony payment since the date of the order. The rule was issued and dismissed when the husband made his payments current.
On August 2, 1983, the husband presented a Petition to Modify or Terminate Alimony. On August 11, 1983 wife petitioned for a Rule To Show Cause Why her husband should not be held in contempt. The petitions were consolidated. The judge below assigned a hearing examiner and limited the issue at the hearing to "cohabitation vel non ".
The hearing examiner found the husband in contempt of the consent order of January 13, 1983 and found that the husband could purge himself of the contempt by complying with the consent order. His petition for modification or
[ 339 Pa. Super. Page 120]
termination was denied and he was ordered to pay the $3000 already ...