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MARY C. ANDURSKY v. MICHAEL A. ANDURSKY (02/23/89)

filed: February 23, 1989.

MARY C. ANDURSKY, APPELLEE,
v.
MICHAEL A. ANDURSKY, APPELLANT



Appeal from the Order entered March 30, 1988, in the Court of common Pleas of Fayette County, Civil, No. 1662 of 1983, G.D.

COUNSEL

Carmine V. Molinaro, Jr., Connellsville, for appellant.

Carl P. Izzo, Jr., Uniontown, for appellee.

Olszewski, Del Sole and Kelly, JJ.

Author: Olszewski

[ 382 Pa. Super. Page 2]

This is an appeal from an order enforcing provisions of a property settlement agreement. Appellant raises three issues for our review.*fn1 Because the trial court lacked jurisdiction to hear appellant's petition for enforcement of court order, we do not reach the merits of this appeal and vacate the trial court order.

The parties were divorced by decree entered July 11, 1984. Incorporated in the divorce decree was the property settlement agreement that was executed on June 4, 1984. Paragraph one of the agreement provides:

It is specifically understood and agreed by and between the parties hereto, and each of the said parties do hereby warrant and represent to the other, that the execution and delivery of this Agreement while a divorce action is

[ 382 Pa. Super. Page 3]

    presently pending is not predicated upon nor made subject to any agreement regarding the institution, prosecution, defense or for the non-prosecution or non-defense of any action for divorce . . . .

Paragraph 16 states, "This Agreement shall be incorporated in the Divorce Decree, but the Agreement shall not merge with said divorce." The divorce decree of July 11, 1984 also states that the agreement is incorporated by reference.

On March 4, 1988, appellee filed a petition for enforcement of court order, requesting, inter alia, arrearages in the amount of $3,300.00, and attachment of appellant's pension benefits to avoid further failure to pay. The basis of the petition was paragraph six of the agreement which reads:

Wife agrees to waive all her rights to temporary or permanent alimony. However, it is expressly understood and agreed by and between the parties, that when the Husband receives pension benefits at the time of his retirement, he shall pay out of such pension benefits, the sum of $150.00 a month as alimony to his wife. Said payments shall be conditioned on the Wife remaining unmarried. If the Wife should ...


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