Appeal from the Judgment of June 5, 1984, in the Court of Common Pleas of Columbia County, Civil Division, at No. D R 102 of 1981.
Peter J. Hill, Assistant Public Defender, Bloomsburg, for appellant.
Michael J. Irey, Berwick, for appellee.
Rowley, Hester and Lipez, JJ.
[ 351 Pa. Super. Page 206]
The question raised by this appeal is whether wife-appellant can assert the validity of a separation agreement containing a provision for child support when she had failed to raise such a defense in prior support modification proceedings. The lower court held that she had waived such an argument by failing to demand adherence to the terms of the agreement in previous actions, and reduced husband-appellee's support obligation below the amount specified in the agreement. We disagree and, for the following reasons, we reverse.
On April 17, 1980, the parties, who were at that time married and residents of New York, entered into a separation agreement for the disposition of their respective property
[ 351 Pa. Super. Page 207]
rights and for the custody and support of their two minor children. Specifically, the agreement provided that appellant would retain custody of the children and appellee would pay $80 per week for their support and $20 per week for appellant's support. The agreement further stipulated that the obligations set forth therein would survive and would not merge into a subsequent divorce decree, and that it could be enforced independently of such a decree.
Approximately one year later, appellant filed a petition for support in Luzerne County, alleging that appellee ceased making support payments as of September, 1980. An order was thereafter entered on June 22, 1981, directing appellee to pay $150 per month for two months and thereafter $350 per month for the support of appellant and her two children.*fn1
Alleging changed circumstances, appellee thereafter filed a petition to modify the order, which was granted on September 23, 1982. That order reduced appellee's support payments to $240 per month for six months and thereafter to $140 per month, plus $30 per month toward arrearages.
On October 7, 1982, appellant filed a petition for modification and appellee cross-filed. Before a hearing was held on the parties' cross-petitions, a divorce decree was entered in New York on January 9, 1984. The decree provided that the separation agreement of 1980 would survive and would not be merged into the divorce decree.
A hearing on the cross-petitions was held on February 7, 1984. For the first time, appellant asserted the applicability of the separation agreement and argued that the trial court lacked authority to set aside or reduce the amount of support called for in the agreement. The court rejected appellant's contentions and entered an order directing appellee to pay $350 ...