Appeal from the Order entered in the Court of Common Pleas of Philadelphia, Civil Division, No. 2011 AUG TERM 1983.
John V. Ryan, Norristown, for appellant.
Idee C. Fox, Philadelphia, for appellee.
Wieand, Tamilia and Roberts, JJ. Wieand, J., files concurring and dissenting opinion.
[ 360 Pa. Super. Page 67]
This appeal was taken by the former wife from the dismissal of an equity complaint to enforce a separation agreement.
Appellant alleges the agreement was not incorporated into the divorce decree and concerns matters agreed upon other than support of the children as the support matters were subject to court order. The court granted appellee/husband's preliminary objection, agreeing with the appellee the issues were being considered in a pending support proceeding.
The age old issue presented here is whether matters subject to a separation agreement, and overlapping with issues involving a support order, should be heard in different branches of the court. Judge John Meade determined that the issues presented by a complaint in equity were more properly issues of law to be determined in an action in assumpsit. Further, he indicated that since issues raised in the equity complaint, relating to college expenses, medical expenses and arrearages, were the same issues subject to
[ 360 Pa. Super. Page 68]
disposition in a concurrent proceeding before Judge Rosenwald in the Family Court, the equity action should be consolidated with the support action. He failed, however, to produce an Order to that effect and simply granted the preliminary objection and dismissed the complaint.
While no Opinion was filed by the trial court, nor did we receive a brief from appellee, the issues are clearly raised by appellant/wife and thoroughly discussed on the record during hearing on the preliminary objection.
While the agreement provides for its enforcement in equity, parties cannot confer jurisdiction by their own action. The proper remedy to enforce a separation agreement is an action in assumpsit. In Hollman v. ...