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NICHOLAS CACCAVO v. DONNA M. CACCAVO (08/28/89)

submitted: August 28, 1989.

NICHOLAS CACCAVO, APPELLEE,
v.
DONNA M. CACCAVO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division at No. 3001 December 1984.

COUNSEL

John J. Garagozzo, Philadelphia, for appellant.

Gerald Schorr, Philadelphia, for appellee.

Popovich, Johnson and Hester, JJ. Johnson, J., concurs in the result.

Author: Popovich

[ 388 Pa. Super. Page 461]

This case involves an appeal from the order*fn1 of the Court of Common Pleas of Philadelphia County finding the appellant (Donna M. Caccavo) in contempt and directing her to pay counsel fees to the appellee (Nicholas Caccavo). We reverse.

The record reveals that on November 21, 1984, Donna and Nicholas entered into a Property Settlement Agreement ("Agreement"). At Section 10A(3) of the Agreement, it reads in relevant part that:

Wife agrees to submit her income tax returns to Husband if she files separately, at his request or the request of his representative.

Because of the wife-appellant's failure to comply with the husband-appellee's numerous requests for her income tax returns, he filed a petition seeking to hold her in contempt for willfully failing to provide such documents for the years 1984-87. Additionally, the appellee sought counsel fees in connection with the contempt petition.

On October 25, 1988, a hearing was conducted to assess the appellee's petition. At that time, counsel for the appellee stated that Section 10A(3) was a "voluntary mechanism[] for the parties to keep tabs on each other's income for the purpose of child support." However, the efforts of counsel for the appellee, for a period of over 3 1/2 years, to obtain the tax returns were fruitless. "At the time this [A]greement was entered, Mrs. Caccova's income . . . was quite minimal, and [the appellee wanted] to confirm that [the appellant's] income [was] considerably higher at this time," so stated appellee's counsel.

[ 388 Pa. Super. Page 462]

It was the position of counsel for the appellant that the phrase in the Agreement "if she files separately" was vague because one could not decipher when it "starts or ends".

Counsel for the appellant claimed that only the 1987 tax return was in dispute because in 1988 his client would be filing jointly with her new husband so she "no longer files separately", and this rendered the "paragraph . . . moot". Also, because the appellant filed for an increase in child support, the hearing to be held on October 1, 1988, before a hearing officer, then the appellee would be entitled to a disclosure of the appellant's financial status. The court disagreed and believed that the parties entered into a contract whereby the appellant obligated herself to submit her income tax returns to the appellee "at his request or the request of his representative". And, the fact that the language appeared under the contractual heading of "CHILD SUPPORT" did not detract from the appellant's obligation to comply with a request for income tax returns.

However, the appellant's counsel did not understand why 1984, 1985 and 1986 tax returns were relevant since they related to the determination of whether a modification of support would be appropriate. The support order had been changed on various occasions already by court order. Nonetheless, the trial court felt that:

The issue [was] whether . . . [the appellant] entered into a binding agreement for the settlement and dissolution of th[e] marriage. If that be so, [the appellee was] entitled to make the request.

It was the court's firm understanding that the appellee had a "right" to see the appellant's income tax returns as long as she was filing separately. The court refused to accept the appellant's argument that the language cited supra in Section 10A(3) was a "contingent" clause in that section. Instead, it ordered the appellant to turn over her tax returns for 1984 ...


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