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filed: November 1, 1985.


Appeal from the Order of June 4, 1981 in the Court of Common Pleas of Allegheny County Civil Division, No. GD 81-11344. Appeal from the Order of December 22, 1982 in the Court of Common Pleas of Allegheny County, Family Division No. FD 81-10538.


John M.R. Ayres, Johnstown, for appellant in No. 1 and appellee in No. 707.

Samuel J. Reich, Pittsburgh, for appellant in No. 707 and appellee in No. 1.

Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Tamilia and Johnson, JJ. Spaeth, President Judge, and Cavanaugh and McEwen, JJ., join Tamilia, J., except as to subject matter jurisdiction, on which issue they join Johnson, J. Johnson, J., files concurring and dissenting opinion in which Rowley, J. joins. Spaeth, President Judge, and Cavanaugh and McEwen, JJ., join Johnson, J., as to subject matter jurisdiction only. Brosky, J., files dissenting opinion.

Author: Tamilia

[ 347 Pa. Super. Page 293]

This is a consolidated appeal from two orders issued in a dispute over the enforcement of a support agreement. The first order was in favor of the former wife, Mary C. Hollman (hereinafter "Mary"), holding that the pension funds of the former husband, Wade Power Hollman (hereinafter "Wade"), could be attached to enforce the support agreement. The second order was in Wade's favor, holding

[ 347 Pa. Super. Page 294]

    that this Court's decision in Schmitz v. Schmitz, 305 Pa. Super. 328, 451 A.2d 555 (1982) forbids such attachment of pension funds since the parties were no longer married. We find that Schmitz governs the case before us and accordingly, we vacate the first order and affirm the second.

Factual and Procedural History

Mary and Wade entered into a support agreement on March 3, 1969, which provided that Wade was to pay Mary the fixed sum of $300.00 monthly. The parties became divorced shortly thereafter in May of 1969. Wade made these payments consistently until November of 1978, at which time they ceased. A default judgment was then entered against Wade for the missed payments in the amount of $1,800. Consequently, a writ of execution was issued and served on U.S. Steel and Carnegie Pension Funds to attach the pension benefits in the amount of $1,661.69 per month being received by Wade. However, Wade claimed an exemption from attachment on the basis that the court was unable to enforce a support agreement as opposed to a court-imposed support order. The court below dismissed this claim for an exemption from attachment on June 4, 1981.*fn1 Wade appealed from this order.

Subsequently, the payments still not made, Mary brought a second action in equity to enforce the separation agreement. On February 23, 1982, the court below entered an order directing Wade to make the monthly payments to Mary pursuant to the support agreement. The court also directed that judgment be entered on the arrearages that had accrued since the first action. A second attachment was then made against Wade's pension benefits. At this point, the trustees of the pension plan, as garnishee, questioned the attachability of the pension funds.

[ 347 Pa. Super. Page 295]

Acting in a two-judge en banc panel,*fn2 the court below, on December 22, 1982, ordered the dismissal with prejudice of the judgment of garnishment of the pension funds. As noted above, this decision was based on Schmitz, supra. Appeal was taken from this order by Mary.


The issue before us is: Whether pension payments of a former spouse can be attached to satisfy a judgment entered against him for arrearages in payments due to his former wife under a support agreement?

We begin our analysis by noting that 42 Pa.C.S.A. § 8124(b) sets forth:

(b) Retirement funds and accounts. --

(1) Except as provided in paragraph (2), the following money or other property of the judgment debtor shall be exempt from attachment or execution on a judgment:

(vii) Any pension or annuity, whether by way of a gratuity or otherwise, granted or paid by any private corporation or employer to a retired employee under a plan or contract which provides that the pension or annuity shall not be assignable.

Applying this language to the facts before us, there is no denying that the pension fund here involved is not assignable and, therefore, appears to be exempt from attachment or execution.

As noted above, the en banc court below relied on Schmitz in support of its order dismissing the judgment of garnishment of the pension funds. The Schmitz case involved the attempted garnishment of the cash surrender

[ 347 Pa. Super. Page 296]

    value of life insurance policies to satisfy arrearages in payments owed under a support agreement. The facts in Schmitz vary from those before us in only one particular. Schmitz involved 42 Pa.C.S.A. § 8124(c) -- the insurance exemption -- and not, as here, 42 Pa.C.S.A. § 8124(b)(1)(vii) -- the pension exemption. This sole difference in no way renders the holding of Schmitz inapplicable to the case before us.

The Schmitz Court went on to state that since the parties were divorced, the ex-wife was a creditor and no marital support exception to the exemption was applicable:

In the instant case we do not believe the Commonwealth v. Berfield, 160 Pa. Super. 438, 51 A.2d 523 (1947) language is controlling. It must be emphasized that the parties were divorced. There is no longer a legal unity of husband and wife. The obligation here is imposed more so in contract than as an incident arising from the marital status. An absolute decree of divorce terminates the duty of a spouse to support his or her former spouse. Watson v. Watson, 243 Pa. Super. 23, 364 A.2d 431 (1976). Although a separation agreement providing support for a spouse will continue subsequent to a divorce, the obligation is based on a contract. See Cavazza Estate, 169 Pa. Super. 246, 82 A.2d 331 (1951). The legal relationship of marriage has been severed.

Therefore, we find that the Schmitz' divorce precludes us from applying policy relevant to the marital status. Appellee must be considered a judgment creditor and thus, under Pennsylvania law, her garnishment of the cash surrender value of the two life insurance policies cannot be allowed.

Id. 305 Pa. Super. at 332, 451 A.2d at 557.

The holding of Schmitz is clear. Once a couple is divorced, the exception for support to the statutory exemption from attachment no longer applies. From Schmitz it would follow, therefore, that since Wade and Mary were divorced at all times during which support payments were not made,

[ 347 Pa. Super. Page 297]

    the exemption from attachment in 42 Pa.C.S.A. § 8124(b)(1)(vii) is in force here.

We must not overlook the fundamental legal dichotomy between a private support agreement entered into voluntarily by the parties and a support order entered by a court of competent jurisdiction. Each of the above-mentioned legal entities affords a distinct right which is enforceable differently from the other. That being so, a private support agreement is no different from any other contract. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Guerin v. Guerin, 296 Pa. Super. 400, 442 A.2d 1112 (1982); Commonwealth ex rel. Durso v. Durso, 292 Pa. Super. 94, 99, 436 A.2d 1021, 1024 (1981) (Concurring Statement by Spaeth, J., joined by Cavanaugh, J.); Commonwealth ex rel. Jones v. Jones, 216 Pa. Super. 1, 260 A.2d 809 (1969); Cavazza's Estate, 169 Pa. Super. 246, 82 A.2d 331 (1951).*fn3 Consequently, the proper procedure to enforce the husband's failure to comply with his obligations under a support agreement is an action in assumpsit. Exner v. Exner, 268 Pa. Super. 253, 407 A.2d 1342 (1979); Commonwealth ex rel. Jones v. Jones, supra.

In Jones, the facts are identical to those in the present case. The ex-wife attempted to garnish wages of

[ 347 Pa. Super. Page 298]

    the former husband pursuant to the separation agreement. This Court reversed on the legal theory that legislation to enforce support orders is not applicable to agreements. Here, the parties, in contemplation of divorce, chose to enter into a contract regarding the wife's future support and the courts of this Commonwealth cannot abrogate the intent of the parties and reclassify the contract to give it the effect of a judicial order. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982); Litwack v. Litwack, 289 Pa. Super. 405, 433 A.2d 514 (1981).

While the Divorce Code of 1980, 23 P.S. § 101 et seq., has expanded the obligation of support to support agreements included in post-divorce "spousal support" or "alimony" and additionally recognizes and encourages private alimony agreements, that is not to mean the distinction between these entities has been eliminated. To equate a private support agreement with alimony is a misconstruction of the term "alimony" which is by definition: "An order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment." 23 P.S. § 104 (emphasis added). Even though alimony may arise through agreements, which are encouraged, it does not become "alimony" unless incorporated in a divorce decree or alimony order. 23 P.S. § 501(a) and 501(f).

Section 501(f) of the Divorce Code provides:

Whenever the court shall approve an agreement [of support] for the payment of alimony voluntarily entered into between the parties, such agreement shall be deemed the order of the court and may be enforced as provided in section 503 [enter judgment on arrears, taking property, attach wages, award interest, require surety for future payment, attachment and incarceration] (emphasis added).

It is the latter provision which distinguishes a support order or alimony order (which is simply another species of a support order) from a separation agreement or unincorporated voluntary alimony agreement. The Divorce Code simply extended the duty of support, enforceable by court

[ 347 Pa. Super. Page 299]

    order, beyond the divorce, so long as the duty was preserved by court order prior to the divorce. Commonwealth ex rel. Cook v. Cook, 303 Pa. Super. 61, 449 A.2d 577 (1982). Also, the fact that the agreement here was created long before the Divorce Code of 1980, causes the Code to be inapplicable in this case. See Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985). The distinction is further sharpened by the finding in Millstein v. Millstein, 311 Pa. Super. 495, 457 A.2d 1291 (1983), which held that a support order does not merge into a separation agreement; each has its own attributes of enforceability. Without the special legislative provision for post divorce alimony, a duty of support arises out of the marital obligation and ends with the termination of marriage. Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983).

A. -- Support Orders

A support or alimony order is a creation of statute and an incident of the marriage which is enforceable by operation of law. Commonwealth ex rel. Smith v. Smith, 260 Pa. Super. 203, 393 A.2d 1224 (1978). Proceedings relative to such orders contain due process requirements, evidentiary findings and involve scrutiny by the court as to their validity, subject to appellate review. In return for this closely proscribed legal proceeding with its attendant safeguards and judicial findings, the legislature has extended the powers to bring about compliance by granting courts the right to attach property and wages and to incarcerate willfully delinquent obligors. A further extension of this power is the right to modify the order or vacate the arrears upon a showing of changed circumstances, 23 P.S. § 501(e), and in furtherance of the process, provides that the court will have domestic relations sections and personnel to receive, disburse and monitor payments. 23 P.S. § 504. See Support Proceedings, 42 Pa.C.S.A. § 6701 et seq., as superseded by Pa.R.C.P. 1910, Actions for Support; Revised Uniform Reciprocal Enforcement of Support Act (1968), 42 Pa.C.S.A. § 6741 et seq. Thus, upon analysis, it is apparent

[ 347 Pa. Super. Page 300]

    that extraordinary attributes and conditions are attached to support and alimony orders, which become instruments of the court, and not subject to the control of the parties. Were we to make the enforcement of support agreements equivalent to the enforcement of support or alimony orders, then the full panoply of enforcement means would become available, including jailing for contempt. Thus, a person could be jailed on an obligation which never passed the due process accorded to court orders and is not subject to constant review for modification for change of circumstance or ability to pay.

B. -- Support Agreements

By comparison, agreements, whether they be separation, antenuptial, postnuptial or support, are instruments of contract in which the court has no involvement. None of the elements of due process, court review and appealability are involved in agreements such as these, which are private undertakings between two parties, each having responded to the "give and take" of negotiations and bargained consideration. As such, they are governed by the law of contracts. Steuart v. McChesney, supra, Brown v. Hall, supra, Litwack v. Litwack, supra, VanKirk v. VanKirk, 336 Pa. Super. 502, 485 A.2d 1194 (1984). This means, of course, they are not modifiable unilaterally; a court cannot remake or modify such an agreement as it would be the taking of property without due process of law. Also, such an agreement is solely enforceable by an action in assumpsit. Brown, Jones, Cavazza's Estate, Exner, supra. Since they are not court orders, the extraordinary powers flowing from a court order are not available. To jail a person for failing to pay on his agreement (which created a debt) is prohibited by our constitutions, state and federal, as imprisonment for debt. Clark, Law of Domestic Relations, Ch. 16.12, p. 554 (1968). Garnishment of wages or a pension is likewise uniquely applicable to court orders of support and alimony, as a legislatively empowered exercise of court authority to implement its orders. Strict

[ 347 Pa. Super. Page 301]

    limitations are imposed on attachment of these assets, and it has been universally held they cannot be attached unless pursuant to an order of support; support agreements are specifically excluded from such enforcement. No private agreement, at least in Pennsylvania, has been ascribed with this power. Buswell v. Buswell, 377 Pa. 487, 105 A.2d 608 (1954).

In Steuart, the Court reiterated the basic and time-honored rule of contract law that a court may not rewrite a contract "for the purpose of accomplishing that which, in its opinion, may appear proper, or, on the general principles of abstract justice . . . ." Id., 498 Pa. at 51, 444 A.2d at 662 (quoting 17A C.J.S. Contracts, § 296(3)). Were we to disregard ...

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