NO. 03210 Philadelphia, 1983, Appeal From Order, Court of Common Pleas, Civil Division, Northampton County No. DR79983
Bohdan J. Zelechiwsky, Bethlehem, for appellant.
Cregg E. Mayrosh, Hellertown, for appellee.
Cavanaugh, Olszewski and Hoffman, JJ.
William B. Borrell appeals to this court from the order of Northampton County Court of Common Pleas directing him to pay support to his wife, appellee, Mary Borrell, in the amount of $157.00 per week. Appellant contends that this order contravenes the terms of a separation agreement previously entered into by the parties and, accordingly, should be vacated. Alternatively, appellant argues that the trial court erred in refusing to award a new hearing on the grounds of after-discovered evidence put forth by Mr. Borrell.
At the time of the hearing in October, 1983, the parties were husband and wife.*fn1 They had ceased living together in the same household and, on August 20, 1981, had entered into a Separation Agreement. Pursuant to that agreement, the appellant agreed as follows:
13. HUSBAND agrees to pay alimony to WIFE in the amount of One Hundred Twenty-Five ($125.00) Dollars every two (2) weeks, until August 1, 1982.
Should HUSBAND fail to make payment under this Agreement, the entire balance shall be due and payable. Alimony payments will not be extended or increased beyond August 1, 1982.
Appellant met these obligations and continued to make payments voluntarily until May, 1983.
On July 13, 1983, appellee filed a petition for spousal support in the court below. Following a hearing, the court entered the order sub judice awarding appellee-wife $157.00 per week. In its opinion in support of that order, the court opined that it had not considered the Separation Agreement in making its decision because the Agreement by its terms did not provide for enforcement through an action for support. Lower ct. op. at 2 (citing Pa.R.C.P. 1910.1(b)(1)(c) ("The rules of this chapter [relating to actions for support] shall not govern a contract or agreement unless the contract or agreement provides that it may be enforced by an action in accordance with these rules.") Additionally the support court noted that the husband had presented no evidence that the Separation Agreement had been incorporated into a decree for divorce.*fn2 "Absent such an incorporation, or a provision for enforcement under an action for support, the separation agreement cannot be considered in these proceedings." Lower ct. op. at 2 (citing Guerin v. Guerin, 296 Pa. Super. 400, 442 A.2d 1112 (1982)). Alternatively, the court noted in a footnote, even if the agreement were considered it would be disregarded on the grounds that the wife was not counseled with respect to the agreement nor did she enter into it voluntarily. Lower ct. op. at 2 n. 2 (citing Millstein v. Millstein, 311 Pa. Super. 495, 457 A.2d 1291 (1983)).
The initial question before this court is whether the support hearing court ought properly to have considered the Separation Agreement. We believe that ...