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ROSALIE C. CASPER v. WILLIAM R. CASPER (12/22/86)

filed: December 22, 1986.

ROSALIE C. CASPER
v.
WILLIAM R. CASPER, APPELLANT



Appeal from the Order dated June 28, 1985 in the Court of Common Pleas of Butler County, Civil Division, No. F.C. No. 83-1307-S, Book 8, Page 361.

COUNSEL

Lawrence P. Lutz, Butler, for appellant.

David L. Cook, District Attorney, Butler, for appellee.

Rowley, Del Sole and Cercone, JJ. Del Sole, J., concurs in the result.

Author: Cercone

[ 359 Pa. Super. Page 560]

In this case appellant William Casper petitioned the lower court to modify or terminate the provisions of a support order alleging substantial change in circumstances. On June 28, 1985, the court denied his petition. It is that order from which this appeal lies.

The parties to this case were married on June 24, 1945. Various marital difficulties resulted in the filing of a Complaint in Divorce in 1975. Prior to a divorce being entered, the parties entered into an agreement which settled questions of property distribution, support for wife and children, and custody.*fn1 ("Agreement") This agreement was adopted and entered as an Order of Court on December 10, 1975. ("December 10 Order") This order required that all support payments set forth in the Agreement be paid to the Butler County Domestic Relations Department as required by the terms of the Agreement.

At the time the Agreement was entered, Pennsylvania law did not provide for post-divorce alimony to a dependent spouse. Prior to enactment of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, effective in 90 days, 23 P.S. §§ 101-801 ("Code"), a husband's duty to support his wife ceased upon dissolution of the marriage unity.*fn2 In order to provide for the needs of a dependent spouse, appellee in this case, divorcing couples entered into agreements such as the one at issue here.

The Divorce Code of 1980 provides, under certain circumstances, for the legal right of a dependent spouse to receive alimony from the supporting spouse even after the divorce has been finalized. See 23 P.S. § 501. Section 501(e) provides for the modification of orders granting alimony "upon changed circumstances of either party of a substantial and continuing nature." Based on this section of the

[ 359 Pa. Super. Page 561]

Code appellant alleges his right to modification or termination of the December 10 Order.*fn3 He argues that because the underlying agreement was entered as an order of court to be paid through and enforced by the Domestic Relations Department, it was one modifiable by the terms of section 501(e). This argument overlooks the clear language of section 103 of the Code which states that the Code shall not affect any marital agreement executed prior to the effective date of the act. See 23 P.S. § 103. Here, the Agreement was entered in 1975, nearly five years prior to the effective date of the act in 1980. See Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985) (Where both divorce decree and property distribution order were entered prior to effective date of Divorce Code, the Code did not apply.) See also, Cohen v. Cohen, 352 Pa. Superior Ct. 453, 508 A.2d 561 (1986) (Section 103 proscribes the enlargement of a party's substantive rights in a case that has become final before the effective date of the Divorce Code of 1980.)

While we agree with the result reached by the lower court, we do not adopt its reasoning. That court treated this case as one to be decided under the Code, rather than according to the old divorce law.*fn4 The lower court concluded that an order integrating an award of alimony with equitable distribution is not modifiable citing Fleming v. Fleming, 130 P.L.J. 68 (C.P.Alleg.Co.1982) and Capponi v. Capponi, 132 P.L.J. 583 (C.P.Alleg.Co.1984). In the alternative, the lower court stated that it would not rewrite the parties contract on the authority of Litwack v. ...


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