Appeal from the Order entered in the Court of Common Pleas of Montgomery county, Civil Division, No. D-1466-82
Harold Einhorn, Philadelphia, for appellant.
Llynne Z. Gold-Bikin, Norristown, for appellee.
Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Popovich, JJ. Cavanaugh, Rowley and Wieand, JJ., concur in the result. Beck, J., concurs and dissents.
[ 379 Pa. Super. Page 46]
This is an appeal from the Order of the Montgomery County Domestic Relations Court, reducing the amount of support for minor children, fixed by a separation/property settlement agreement and a support Order at $235 per week, to $150 per week, plus $25 per week on account of arrearages. The Court en banc considered this case at the same time and in conjunction with Sonder v. Sonder (E5009/87) as the issues are the same (in part) and involve opposite interpretations by two judges of the Montgomery County Court of a court-approved Decree and Order Form.
[ 379 Pa. Super. Page 47]
The issue presented in this appeal is whether the court had jurisdiction and authority to modify a support agreement which was incorporated but not merged in a subsequent decree of divorce. Briefly, the facts in this case are as follows.
The parties were married on April 13, 1969 and, from this union, three children were born. As a result of marital discord, the parties separated in 1983 and, on September 5, 1985, they entered into a 24-page counseled property settlement/separation agreement which provided for support for the children in the amount of $200 per week, retroactive to November 1, 1984 (until each is emancipated), and $235 per week as of January 1, 1985. Paragraph 25 of the agreement provided the agreement would not be modified or annulled by the parties thereto except in the same manner and with the same formalities of the agreement. Shortly thereafter, a divorce decree and Order were entered on September 16, 1985, which provided:
[T]erms, provisions and conditions of a certain property agreement between the parties, dated September 5, 1985, (attached as exhibit "A") is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth herein at length. Said agreement shall not merge with but shall survive this Decree and Order.
Subsequently, appellee fell in arrears on the payment of support and, after issuance of six bench warrants for failure to pay, on February 26, 1986, he filed a petition to modify "Order of July 1, 1985."*fn1 The petition was heard
[ 379 Pa. Super. Page 48]
before a Master in Support and was dismissed. On July 10, 1986, a hearing on exceptions to the master's finding and decision were heard before the Honorable Gerald Corso. Following a hearing during which extensive testimony was taken, an Order was entered on July 14, 1986, granting appellee's petition and reducing the child support Order of July 1, 1985 from $235 to $150 per week.
The Order of July 1, 1985, which was identical in amount and provisions as contained in the agreement of September 5, 1985, appears never to have been vacated and continues in effect. The agreement of September 5, 1985 makes no mention of that Order and makes no provisions for its suspension or supersedance by the agreement. The agreement was entered into after several negotiations relating to payment (or nonpayment) of the support Order. In Judge Corso's Opinion, he referred to both the separation agreement and the support Order of July 1, 1985 and purported to reduce both, at least by implication.
Dealing with each separately, we affirm the reduction of the support Order of July 1, 1985 and vacate the reduction of the amount of support under the support agreement. The original permanent Order of support was entered on June 28, 1983, and there was considerable activity on ...