COMMONWEALTH of Pennsylvania ex rel. Nancy A. TOKACH, Appellant, v. John P. TOKACH.
Superior Court of Pennsylvania.
March 2, 1984.
Argued Oct. 27, 1983.
474 A.2d 41 | 326 Pa. Super. 359
Thomas B. Kostolansky, Donora, for appellee.
JOHNSON, Judge:
On February 23, 1982 the parties to this litigation, then husband and wife, signed an agreement which рrovided for the support of the couple‘s two minor children. The child support provision was one element in the аgreement which was a comprehensive property settlement plan. The agreement was drawn in anticipation of a forthcoming divorce which was actually decreed on June 18, 1982. The divorce
At the time the agreement was signed, the appellee was actually netting more than $1,200.00 per month and the appellant was not employed. Appellee filed his request to modify the support agreement аfter he experienced a change in employment which reduced his gross income to a disputed amount between approximately $1,280.00 and $1,550.00, per month. The appellant gained employment which affords her $789.00 gross income per month. The issue before us is whether under all the circumstances the hearing judge was correct in reducing appellee‘s mоnthly support payment from $350.00 to $225.00.
Appellant relies upon the decisions in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981) and Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), to support the argument that since the child support agreement was part of a total private property settlement it should be treated as a private contract and not altered by the court. In fact, these two decisions are distinguishable from the case before us. Both Brown and Millstein involved agreements which had not been inсorporated into any order of the court and were, therefore, separate contractual agreements. In the instant case the agreement was expressly incorporated into the divorce decree of June 18, 1982.1
Although some jurisdictions recognize a distinction between incorporation of a settlement agreement and
Where there is only a court-ordered support payment obligatiоn, the general rule is that the amount of support payments is not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Where, as here, the contractual agreement is merged into the court‘s order, the agreement takes on the identity of a court order and the contract as a separate entity ceases to exist. The hearing judge therefore was within his authority to consider the request by appellee to reduce the required monthly child support payments.
An additional question raised by the appellant is whether the apрellee met the burden of proof necessary to modify a support order. It is true that in a proceeding to modify а support order, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Commonwealth v. Vogelsong, supra; Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). At the hearing before the Honorable Charles G. Sweet on December 16, 1982, the petitioner, here appellee, produced current pay slips to document his earnings at that time. (H.T. pg.
In accordance with the above, and finding no abuse of discretion by the trial сourt, we affirm the support order of January 13, 1983.
CAVANAUGH, J., files a concurring statement.
CAVANAUGH, Judge, concurring:
I concur in the result reached by the majority. The contractual provisiоn in question is as follows:
Husband has agreed, or is about to agree, to a consent amount, based upon his net earnings being approximately $1200.00 per month and such arrangements are being made through the Domestic Relations Office of Washington Cоunty, Pennsylvania, for $350.00 per month for two (2) children, with payroll deductions being made in the amount of $175.00 from two (2) pays each month.
Clеarly, by stating that the basis of the $350.00 per month figure was husband‘s $1,200.00 per month income, the parties evidenced their intent that changes in economic status might precipitate changes in husband‘s support obligation. To construe this provision otherwise would be to treat the $1,200.00 reference as mere surplusage. Since I feel the contract itself is modifiable, I see no nеed to decide whether it was made modifiable by the subsequent reference to it in the divorce decree.