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NANCY MCGOUGH v. HENRY A. MCGOUGH (03/19/87)

filed: March 19, 1987.

NANCY MCGOUGH, APPELLEE,
v.
HENRY A. MCGOUGH, APPELLANT



Appeal From Order Entered January 23, 1986 Court of Common Pleas, Civil Division, Montgomery County, No. D-2829-83, Case No. 28377.

COUNSEL

Daniel C. Barrish, Norristown, for appellant.

Cavanaugh, McEwen and Beck, JJ.

Author: Cavanaugh

[ 361 Pa. Super. Page 392]

This is an appeal from an order of court requiring appellant, Henry A. McGough, to pay the sum of $163.00 per week for the support of his three minor children, plus $5.00 per week toward arrearages.

The parties were divorced on December 14, 1984. Prior to the divorce, they entered into a written property settlement agreement which provided that appellant was to make child support payments of $140.00 per week, plus an annual lump sum payment of $400.00 for each of the three children. The divorce decree provided that the property settlement agreement was incorporated into the decree. It further provided that the settlement agreement "shall not merge with but shall survive" the divorce decree and order.

Subsequently, appellant filed a petition to modify the order of support with the Domestic Relations Office of Montgomery County, claiming that changed circumstances warranted a decrease in the amount of weekly support appellant was required to pay. Thereafter, appellee filed a petition seeking to increase support payments, citing increased costs of caring for the children. A Master in Support found that the property settlement agreement did not merge, but survived the decree and order in divorce and left standing appellant's support obligation as previously described. Both appellant and appellee filed exceptions to the determination of the master.

[ 361 Pa. Super. Page 393]

At a hearing before the Honorable Albert R. Subers, the Master's determination was upheld and this appeal followed.

At issue in this case is what appellant contends is a conflict within the divorce decree itself. This decree states, in pertinent part:

AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED, pursuant to Pa.R.C.P. 1920.1, et seq. § Act 26-1980, 23 P.S. § 1, et seq., "The Divorce Code", that the terms, provisions and conditions of a certain property settlement agreement between the parties dated November 13, 1984, and attached to this Decree and Order as Exhibit "A" is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth at length. Said agreement shall not merge with but shall survive this Decree and Order.

Appellant argues that since the divorce decree expressly incorporates a pre-divorce property settlement agreement, the agreement merges into the decree and is completely modifiable, as are all orders of support, upon a showing of materially changed circumstances. Commonwealth v. Vogelsong, 311 Pa. Super. 507, 457 A.2d 1297 (1983), Dunbar v. Dunbar, 291 Pa. Super. 224, 435 A.2d 879 (1981). It is appellee's position that the portion of the decree declaring that the property settlement agreement did not merge with, but survived the decree, is controlling. Consequently, the property settlement agreement is not open to modification by the courts,*fn1 and may be enforced against either party under well-established principles of contract law.

Appellant urges that our recent holding in Tokach v. Tokach, 326 Pa. Super. 359, 474 A.2d 41 (1984) mandates that we resolve this ...


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