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JOHN CONRADY v. ELVA CONRADY (10/31/88)

filed: October 31, 1988.

JOHN CONRADY
v.
ELVA CONRADY, APPELLANT



Appeal from the Order entered in the Court of Common Pleas of Allegheny County, Family Division, No. FD 82-9807

COUNSEL

Craig E. Wynn, Aliquippa, for appellant.

Matthew J. Carl, Pittsburgh, for appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Tamilia

[ 379 Pa. Super. Page 428]

This is an appeal from an Order granting appellee John Conrady's petition for enforcement of settlement agreement.

On April 7, 1977, appellant Elva Conrady filed an accounting action in the Court of Common Pleas of Beaver County against her husband, appellee. In that action, appellant sought an accounting from appellee for one-half the value of various jointly owned savings bonds which appellee had appropriated. Following a trial on the matter, judgment was entered in favor of appellant, on November 1, 1977, in the amount of $2,350.

In September, 1982, appellee filed a complaint in divorce against appellant in the Court of Common Pleas of Allegheny County. Appellant filed an answer in which she raised claims for equitable distribution, alimony, counsel fees and costs. The parties filed affidavits of consent and on October 6, 1983, a divorce Decree was entered which incorporated an earlier property settlement agreement dated September 26, 1983.

In 1987, appellant sought to enforce the Beaver County judgment entered against appellee in November, 1977. In response, appellee filed a petition for enforcement of settlement agreement in which he requested the court order the judgment be marked satisfied based on language in the property settlement agreement. By an Order of court, dated October 1, 1987, the trial court granted appellee's petition by construing the property settlement agreement as a release of the Beaver County judgment. Following the denial of appellant's post-trial motions, the court below entered its October 1, 1987 Order as a final Order of court and final judgment. This timely appeal followed.

Appellant raises two issues on appeal. First, appellant argues the trial court erred in not holding that the judgment entered in her favor and against appellee was intangible personal property which was not subject to the release language of the parties' marriage settlement agreement. Second, appellant claims the trial court erred in not interpreting

[ 379 Pa. Super. Page 429]

    the marriage settlement agreement against the party who prepared it.

In her first argument, appellant asserts the 1977 judgment entered in her favor against appellee acted as a legal division of a portion of the parties' marital property. Appellant claims the verdict awarded her in 1977 converted the marital property, which was the subject of the accounting action, into separate non-marital property which was not subject to equitable distribution in the subsequent divorce action. Appellant further argues the release of claims language contained in the parties' property settlement agreement did not release appellee from the effectiveness of the judgment against him. We agree with appellant that the Beaver County judgment transferred entireties property into separate property, but we do not agree the property is not subject to equitable distribution under the Divorce Code of 1980, 23 P.S. ยง 101 et seq., and the provisions of the parties' property settlement agreement.

The question presented in this appeal is whether an existing or prior Order partitioning entireties property pursuant to an accounting action, acts to remove the separate property from consideration in fashioning a later ...


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