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12/16/97 DIANE M. PATTERSON v. STEVEN M. ROBBINS

SUPERIOR COURT OF PENNSYLVANIA


December 16, 1997

DIANE M. PATTERSON, APPELLANT
v.
STEVEN M. ROBBINS, APPELLEE

Appeal from the Order entered March 4, 1997, in the Court of Common Pleas of Bucks County, Family, No. A06-88-60295-S. Before RUFE, J.

Before: Kelly, Schiller and Brosky, JJ. Opinion By: Schiller, J.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed December 16, 1997

Appellant, Diane M. Patterson, appeals from the order entered March 4, 1997, in the Court of Common Pleas of Bucks County reducing appellee's child support obligations to $114.00 per week. We affirm.

FACTS:

The parties to this appeal signed a marital settlement agreement on June 6, 1988, which was incorporated but not merged into their divorce decree of June 23, 1988. It provided, in relevant part, that father (appellee) would pay child support to mother (appellant) of $100.00 per week for each of two children, *fn1 or a total of $200.00 per week, until the children were emancipated. Four months later, on October 26, 1988, mother filed a complaint in the Family Division of the Court of Common Pleas of Bucks County seeking to increase support for the children to $3,000.00 per month. After a conference on February 14, 1989, at which mother was represented, but not present, *fn2 the assigned domestic relations officer recommended that, since no change in circumstances had been established, support remain at $200.00 per week, and that the amount be entered as an order payable through the county's Domestic Relations Office (DRO) *fn3 . On October 24, 1989, a hearing was held in front of the trial court, and on January 17, 1990, the Court entered an Order increasing appellee's support obligation to $225.00 per week. *fn4

On December 3, 1993, father filed a petition to modify support based on a reduction in his income, mother's remarriage, and her employment. Mother then filed a petition for contempt alleging father's failure to provide medical insurance. On March 21, 1994, following a hearing, the Court reduced support to $175.00 per week for four months, to be automatically reinstated at $225.00 per week on July 16, 1994, and ordered mother to provide health care coverage.

On June 23, 1994, father filed yet another petition to modify support. On September 9, 1994, support was again reduced: this time to $125.00 per week for one year. *fn5 On June 24, 1996, because Daniel was no longer living at home, father again petitioned to reduce support. In ruling on this petition the court took two actions: an order was entered to reflect an oral agreement made by the parties in August, 1995, to reduce support to $175.00 per week until September, 1996; *fn6 and, on August 15, 1996, an order was entered reducing father's support to $114.00 per week for one child, Lisa, to increase to $175.00 per week if Daniel returned to his mother's custody. On October 30, 1996, upon Daniel's return, the order was modified to $175.00 per week. On December 23, 1996, father again petitioned to modify support, and on March 4, 1997, after a hearing, *fn7 an order was entered directing husband to pay $114.00 per week support for both children: this amount was derived from the Pennsylvania Child Support Guidelines. *fn8 Appellant filed a motion for reconsideration, which was denied on March 31, 1997. This appeal followed.

Discussion

Despite the fact that appellant posits three issues, *fn9 there are really only two issues before us: whether the trial court could enter an award of child support below the amount established by the marital settlement agreement; *fn10 and whether appellant's original decision to file a support action vitiated the support provisions of the marital agreement.

The first issue was recently resolved by the Pennsylvania Supreme Court in the case of Nicholson v. Combs, 1997 Pa. LEXIS 2488, Pa. , A.2d (November 14, 1997), wherein the Court recognized that for all marital agreements following the enactment of 23 Pa.C.S. § 3105(b), the trial court has the power to modify the terms of the agreement with regard to child support upward or downward based on "changed circumstances." *fn11 The agreement in the present case was entered into approximately four months after the enactment of § 3105(b). Therefore, pursuant to Nicholson, supra, the trial court in this case was empowered to enter an award of child support below the amount called for in the marital agreement.

With regard to appellant's second issue, we note at the outset that the trial court never specifically held that appellant's rights under the marital settlement agreement were foreclosed. *fn12 However, to the extent that the court's decision might be so interpreted, we state that such an interpretation would be contrary to this Court's decision in Swartz v. Swartz, 456 Pa. Super. 16, 689 A.2d 302 (1997).

In Swartz, wife appealed a decision precluding her from bringing a contract action on her settlement agreement because she had previously filed a complaint for support in the family division of the court of common pleas. This court, distinguishing Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991), and relying on Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), and its progeny, held:

The existence of a court-imposed order of support does not vitiate a private agreement for support that has not been merged into a decree of divorce nor does it impede either

parties' ability to enforce the terms of the agreement in an action in assumpsit or equity.

Id. at , 689 A.2d at 305. The rationale of the Swartz decision is supported by the Supreme Court's analysis in Nicholson, supra, wherein the Court specifically disavowed any interpretation of Knorr which would lead to a Conclusion that a private marital agreement is vitiated by a party's recourse to Family Court. Nicholson, 1997 Pa. LEXIS 2488, at *27-29 (November 14, 1997). *fn13

Conclusion

The trial court had the authority to modify its own support order and to enter an award of child support below the amount established by the parties' settlement agreement. However, nothing in the trial court's decision should be construed as impinging on appellant's right to maintain a separate contract action on the settlement agreement.

Consequently, the Order of the Court of Common Pleas of Bucks County is affirmed.


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