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PATSY R. WERTZ v. B. RODNEY ANDERSON (05/02/86)

filed: May 2, 1986.

PATSY R. WERTZ
v.
B. RODNEY ANDERSON, APPELLANT



Appeal from the Decree of the Court of Common Pleas, Civil Division, of Berks County at No. 4888 Equity 1981.

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for appellant.

J. Kitridge Fegley, Reading, for appellee.

Wickersham, Wieand and Popovich, JJ.

Author: Wickersham

[ 352 Pa. Super. Page 574]

B. Rodney Anderson appeals from the decree of the Court of Common Pleas of Berks County denying his post-trial motions and affirming an earlier decree of support entered against him.

Appellant and Patsy R. Wertz, appellee, were at one time husband and wife. The marriage produced three children: Michael, born April 30, 1959, Gregory, born August 23, 1960, and Catherine, born April 14, 1962. Eventually the parties separated and on March 18, 1977, while both parties were represented by counsel, they entered into a comprehensive written postnuptial agreement. Covered under the terms of the agreement were provisions giving appellee custody of the three children and requiring appellant to pay certain set amounts per week to appellee for the support of the children until they turned twenty-one years of age or became self-supporting, whichever occurred first. Another provision of the agreement required appellant to pay, in

[ 352 Pa. Super. Page 575]

    addition, the costs (within specified limits) of the children's college educations, should they go to college.

On August 1, 1977, the parties were divorced. The agreement neither merged with nor was incorporated into the divorce decree. Pursuant to the terms of the agreement, from March 30, 1977 through September 30, 1980, appellant paid directly to appellee support installments totaling $38,350.00. At that point, appellant stopped making the support payments directly to appellee. However, he did make certain payments to the children themselves or to individuals and schools on their behalf. On June 4, 1981, appellee filed a complaint in equity to enforce the child support provisions of the agreement. By the time of trial, all the children had turned twenty-one, and thus all payments that were to have been made to appellee under the agreement were past due. Therefore, appellee revised her request from one for specific performance to one for payment of the $12,762.05 due under the agreement, plus $864.00 for reimbursement of medical costs for Catherine.

After the parties filed a stipulation of facts, the lower court, on December 12, 1984, issued an adjudication and decree nisi directing appellant to pay to appellee the above sums due under the agreement. Appellant's post-trial motions were denied on July 3, 1985, and this appeal timely followed. The sole issue on appeal is:

In an equity [action,] should the defendant be ordered to pay monies to his former wife when he has already paid more than the sums due to or for the benefit of his children with ...


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