Hollman v. Hollman

has therefore the Commonwealth arrays). Smoyer, Under it “show of which means competent evidence no previous existed established and ... was testimony that the v. su- Smoyer, Commonwealth any hypnotic process.” A.2d at 1308. 505 Pa. at pra, trial court. the order of the affirm accordingly

I should A.2d 837 Mary HOLLMAN C.

v. HOLLMAN, Appellant. Power Wade HOLLMAN, Appellant Mary C. HOLLMAN, States Steel Power United

Wade Carnegie Fund. Pension Pennsylvania. Superior Court 12, 1984. Argued March Nov. Filed Johnstown, in No. Ayres, appellant

John M.R. for in No. appellee Reich, No. 707 and Pittsburgh, appellant J.

Samuel in No. 1. appellee CAVANAUGH, SPAETH, Judge, President

Before JOHNSON, McEWEN, BROSKY, ROWLEY, TAMILIA and JJ.

TAMILIA, Judge: in a from two orders issued appeal

This is a consolidated agreement. The of a over the enforcement dispute wife, C. Mary in favor of the former first order was (hereinafter “Mary”), holding pension Hollman husband, (herein- Power Hollman of the former Wade funds enforce “Wade”), attached to could be after favor, holding in Wade’s The second order was agreement. that this Court’s decision in Schmitz, Schmitz v. 305 Pa.Su- per. (1982) forbids such attachment of pension funds since parties were longer no married. We find that governs Schmitz the case before us and accordingly, we vacate the first order and affirm the sec- ond.

Factual and Procedural History Mary and Wade entered into a agreement on 3, 1969, March provided that Wade was to pay Mary the fixed sum of monthly. parties $300.00 became divorced shortly thereafter in May of 1969. Wade made these payments consistently until November of at which time they ceased. A judgment default was then against entered Wade for the missed payments $1,800. amount of Consequently, a writ of execution was issued and served on U.S. Steel and Carnegie Pension Funds to attach the pension benefits in the amount of $1,661.69 per month being However, received by Wade. Wade claimed an exemption from attachment on the basis that the court was unable enforce a support agreement as opposed to a court-imposed support order. The court below dismissed this claim for an exemption from attach- ment on June 1981.1 Wade appealed from this order. made, Subsequently, payments still not Mary brought a second action in equity to enforce the separation agree- 23, 1982, ment. On February the court below entered an order directing Wade to make the monthly payments Mary pursuant to the support agreement. The court also directed judgment that be entered on arrearages had accrued since the first action. A second attachment then against was made Wade’s pension benefits. At this point, trustees of the pension plan, garnishee, ques- tioned the attachability pension funds. Hollman, (C.P. 1981) Allegheny (Opinion by

1. Hollman v. 130 P.L.J. 63 Wekselman, J.). below, on the court panel,2 in a en banc Acting two-judge of 22, 1982, prejudice with ordered the dismissal December As funds. pension of the garnishment of judgment Schmitz, above, supra. was based on this decision noted by Mary. from this order was taken Appeal

Analysis of a payments pension before us is: Whether issue The a en- satisfy judgment attached to can be spouse former to his in due arrearages payments him for against tered support agreement? under a former wife noting that Pa.C.S.A. analysis by our begin We 8124(b) sets forth: §

(b) and accounts.— Retirement funds (2), following in

(1) paragraph as Except provided shall be debtor judgment of property or other money judgment: on a or execution exempt from attachment a by way of (vii) annuity, or whether Any pension otherwise, any private granted paid by or or gratuity a employee under or retired corporation employer or annui- pension that the provides contract which or plan assignable. not be ty shall us, there is no to the facts before language

Applying assigna- here involved fund pension denying therefore, exempt from attachment and, appears to be ble execution. or on above, below relied the en banc court

As noted of dismissing judgment its order in of Schmitz in- case funds. The Schmitz pension garnishment cash surrender attempted garnishment volved judges the one who had than panel of two different 2. This consisted be noted that the It is to in the first action. entered the final order by judge Division of of the Civil was issued initial writ of execution Pleas, judges the two County whereas Allegheny Court of Common garnishment judgment panel, which dismissed the en banc on fund, Family lower assigned Division of the pension to the were Division, the second been filed in the Civil The first action had court. Family Division. in the policies value of life insurance to satisfy arrearages payments owed under a The agreement. facts Schmitz from vary particular. those before us one only Schmitz involved 8124(c) Pa.C.S.A. insurance ex —the not, here, emption 8124(b)(1)(vii)— 42 Pa.C.S.A. § —and the pension exemption. This sole difference in no way Schmitz holding renders the inapplicable to the case us. before Schmitz Court went on to state that since the parties divorced,

were the ex-wife was a creditor no and marital to the support exception exemption applicable: was In the instant case we do not believe the Commonwealth Berfield, (1947) lan- guage controlling. is It must emphasized be were parties longer divorced. There is no a of legal unity obligation husband and wife. The here imposed is more inso contract than as an incident arising from the marital status. An absolute decree of divorce terminates the a duty spouse support of to his or her former spouse. Watson, v. 23, Watson Pa.Super. (1976). 243 364 A.2d 431 Although a separation agreement providing support for a divorce, spouse subsequent will continue to a the obli- Estate, is based on a contract. See Cavazza gation 169 246, Pa.Super. 82 A.2d 331 The legal relationship has marriage been severed. Therefore, we find that precludes the Schmitz’ divorce us applying policy from relevant to the marital status. Appellee must be considered a judgment creditor thus, law, under her Pennsylvania garnishment of the policies cash surrender value of the two life insurance cannot be allowed.

Id. 305 332, Pa.Super. at 451 A.2d at 557. Schmitz is clear. Once a

The holding couple is divorc- ed, exception to the statutory exemption from attachment no longer applies. From Schmitz it would follow, therefore, that since and Mary Wade were divorced made, all times during support payments at were not 297 in 42 Pa.C.S.A. from attachment exemption 8124(b)(1)(vii) is in force here. di legal fundamental must not overlook the We entered into agreement a chotomy private support between entered parties order voluntarily by of the above-men competent Each jurisdiction. right which is en legal entities affords a distinct tioned so, a being from the other. That differently forceable other agreement any is no different from private support Hall, 635, (1981); 859 Pa. 435 A.2d contract. Brown v. 495 Guerin, 400, (1982); 442 A.2d 1112 Pa.Super. v. 296 Guerin 94, Durso, 292 Pa.Super. ex rel. v. Commonwealth Durso (1981) (Concurring A.2d 1024 Statement 436 J., J.); Cavanaugh, ex Spaeth, Commonwealth joined by (1969); Jones, 1, 260 A.2d 809 Pa.Super. 216 rel. v. Jones Estate, (1951).3 Pa.Super. 169 Cavazza’s hus to enforce the Consequently, proper procedure sup his under a comply obligations with band’s failure Exner, v. port assumpsit. an action Exner agreement (1979); A.2d Commonwealth Jones, supra. ex rel. Jones v. Jones, facts to those in the are identical attempted garnish wages The ex-wife

present case. 3. support agreement separation is a proposition that a and/or See, e.g., v. universally Roosevelt has been followed. contract Roosevelt, (1981); Cal.App.3d. Cal.Rptr. Benson Benson, Humphrey Humphrey, (Fla.Dist.Ct.App.1979); v. 99 369 So.2d 778, Hastings Hastings, 114 (Mo.App.1980); v. N.H. 597 S.W.2d 673 (1974); New York State Teachers' Retirement 328 A.2d 782 Gramet v. 731, (1979) (former wife could System, 424 N.Y.S.2d 102 Misc.2d 598 arrearages separation agreement judgment due under enforce for judgment was exempt pension not based against fund since husband’s Stone, action); upon Stone v. upon decree but rather contract divorce 788, (1974); Pope, N.C.App. Pope v. 38 358 N.Y.S.2d Misc.2d 641 78 88, Greiner, 328, (1978); App.2d 61 Ohio 399 260 v. 248 S.E.2d Greiner 292, (1979); Zwerling Zwerling, 255 S.E.2d 850 v. 273 S.C. 571 N.E.2d (Tex.Civ.App.1980). (1979); See Bragdon Bragdon, 594 S.W.2d 561 (1976) (Opinion by also, Farruggia, & 727 6 Pa. D. C.3d Barno v. 1, 10, 1921, J.), May P.L. Brosky, § that the Act of which held proceedings applica- relating and to attachment P.S. § parties inapplicable to who only parties are and who married ble been have divorced.

the former husband pursuant to the separation agreement. This Court reversed on the legal theory that legislation to enforce applicable orders is not agreements. Here, parties, divorce, in contemplation of chose to enter into a contract regarding wife’s future support and the courts of this Commonwealth cannot abrogate the intent of the parties and reclassify contract to it give the effect of a judicial order. Steuart v. McChesney, (1982); Pa. 444 A.2d Litwack, Litwack v.

While the Divorce of Code 101 seq., P.S. et § expanded has obligation support to support agree ments included in post-divorce “spousal support” or “alimo ny” additionally recognizes and encourages private alimony agreements, is not to mean the distinction between these entities has been eliminated. To equate a private support agreement with alimony is a misconstruc tion of the term “alimony” which is by definition: “An order for support granted by this or any other state to a spouse spouse or former conjunction with a decree granting a divorce or annulment.” 23 P.S. 104 (empha § added). sis Even though alimony arise through agree ments, encouraged, which are it does not become “alimony” unless in a incorporated divorce decree or alimony order. 501(a) 501(f). 23 P.S. 501(f)

Section of the Divorce provides: Code approve Whenever the court shall an agreement sup- [of port] for the payment alimony voluntarily entered into the parties, between such agreement shall be deemed order and may the court be enforced as provided arrears, judgment section 503 on taking property, [enter interest, wages, attach award require surety future payment, added). attachment and (emphasis incarceration]

It is the latter provision which distinguishes sup (which order or port alimony order is simply species another order) of a support separation from a agreement or unincor porated voluntary alimony agreement. The Divorce Code simply extended the duty support, enforceable

299 divorce, pre- was order, long duty as the beyond so order to the divorce. Commonwealth by prior served (1982). 61, 577 Cook, 449 A.2d Pa.Super. 303 ex Cook v. rel. long created agreement here was Also, fact that the 1980, Code to be of causes the the Divorce Code before 507 Pa. Young, in this case. v. inapplicable Young See sharpened (1985). The is further 488 A.2d 264 distinction Millstein, Pa.Super. 311 by finding Millstein v. (1983), a order does support which held that has own each its merge separation agreement; into a legislative special enforceability. of Without

attributes of arises alimony, duty provision post divorce with the termination obligation out the marital and ends of Remick, Pa.Super. 456 marriage. Remick (1983). A.2d 163 Orders Support

A.— or is a creation of statute alimony A order marriage enforceable and an incident Smith, rel. Smith v. operation of law. Commonwealth ex rela Proceedings A.2d 1224 evi process requirements, tive contain due to such orders to by the court as findings scrutiny and involve dentiary In return for this appellate to validity, subject their review. its safe legal proceeding with attendant closely proscribed findings, has extended legislature guards judicial and courts bring compliance by granting about powers to to incarcerate wages and right property attach A further extension of delinquent obligors. willfully the arrears modify the order or vacate right is the power circumstances, 501(e), 23 P.S. changed upon showing § that the court process, provides and in furtherance of to re personnel domestic relations sections will have 504. See ceive, monitor P.S. payments. disburse and § seq., super et Proceedings, Pa.C.S.A. 6701 Support § Revised Support; Actions for seded Pa.R.C.P. (1968),42 Act Support Enforcement Reciprocal Uniform Thus, apparent it is upon analysis, seq. et Pa.C.S.A. 6741 that extraordinary attributes and conditions are attached to support orders, and alimony which become instruments of court, and subject not to the control of the parties. Were we to make the enforcement of support agreements equivalent to enforcement orders, of alimony or then the full of panoply enforcement means would become available, including Thus, jailing contempt. a person could be jailed on an obligation which passed never the due process accorded to court orders and is subject not to constant review for modification for change of circumstance ability or to pay. Support Agreements

B.— comparison, By agreements, whether they be separation, antenuptial, postnuptial or support, are instru ments of contract in which the court has no involvement. None of the elements of due process, court review and appealability are involved in agreements these, such as private are undertakings between parties, two each having responded to the and “give take” of negotiations and bargained such, consideration. As they are governed by the law of contracts. Steuart v. McChesney, supra, Hall, Brown v. supra, Litwack, Litwack v. supra, Van VanKirk, Kirk v. 336 Pa.Super. (1984). means, course, This of are they unilaterally; modifiable a court cannot remake or modify such an agreement as it would be the taking property of without process due of law. Also, such an agreement is solely enforceable an action in assumpsit. Brown, Jones, Estate, Exner, Cavazza’s supra. orders, Since they are not court the extraordinary powers flowing from a court order are not available. To jail a person for failing pay (which to on his agreement debt) created a prohibited by constitutions, our state and federal, imprisonment Clark, for debt. Law Domestic of Relations, 16.12, (1968). p. Ch. wages Garnishment of or a pension is likewise uniquely applicable to court orders as a alimony, legislatively exer empowered cise of court authority implement its orders. Strict assets, on attachment of these imposed limitations are cannot be attached unless universally they held it has been agreements support; support an are order pursuant private No from such enforcement. excluded specifically been with at has ascribed agreement, Pennsylvania, least Buswell, 377 105 A.2d Pa. power. Buswell Steuart, the basic and time-hon- the Court reiterated a court not rewrite a of contract law that ored rule which, in its accomplishing purpose “for contract or, general principles on the may appear proper, opinion, Id., Pa. 444 A.2d at at justice....” abstract Contracts, 296(3)). Were we to dis- 17A C.J.S. (quoting § case, we in the instant would rule regard this fundamental contract law. very foundation of shake the Magri ex v. Mary Magrini relies on rel. Commonwealth 366, (1979) proposi 179 for the ni, 398 A.2d Pa.Super. 263 favors this Commonwealth the public policy tion that the support obligations, delinquent spouse’s of a enforcement or court order. by private agreement created whether that it However, analysis Magrini only reveals closer not support obligations and to court-ordered applies In the lower court support agreements. private Magrini, pen against Magrini’s Mr. order of attachment issued an Company the sion, by was Aluminum administered law, Pennsylvania the the reviewing applicable America. no enun the and found there was upheld Court attachment funds which would protecting private pension policy ciated favoring family support. The public policy override prohibited attachment was not Court held Magrini at 42 codified Pa.C.S.A. (currently 40 P.S. by § protect enacted to 8124(b)(1)(vii)), that statute was since § he or she could volun beneficiary’s family so that dissipate the judgments, of creditor tarily, or means Id., support. family without assets and leave 370-71, Additionally, A.2d at 181. Pa.Superior Ct. at seeking to enforce a noted that wife Court Magrini creditor, and therefore ordinary not an order was was not statutorily prohibited from seeking the attachment her pension. Id,., husband’s 263 Pa.Superior Ct. at 371 n. 3, 398 A.2d at 181 n. 3 (citing Commonwealth ex rel. Peterson v. Peterson, 100 (1930)). Thus, after balancing the competing interests, the Magrini Court concluded that the attachment of such benefits aby spouse pursuant to a court order outweighed the private employ- er’s interest in the convenient administration plan. of the Id., 263 Pa.Superior 370-71, Ct. at 398 A.2d at 181. Recent- ly, Pennsylvania Supreme Court Young Young, supra, extended the Magrini doctrine to municipal pensions and held that equitable distribution aby New Jersey court of a Pennsylvania police pension was in the nature of and, therefore, the pension (re- could be attached versing Young v. Young, 320 Pa.Super.

(1983)).

While the rationale of Magrini upholds public policy favoring the enforcement of support obligations, it does so only regards to support orders entered aby court of competent jurisdiction and does not extend to private sup- port agreements. This position is buttressed lan- guage Act of May P.L. 48 P.S. § (utilized by the lower court to attach pension fund), provides which in relevant part:

Whenever any court of competent jurisdiction has made an order or entered a decree or judgment against any requiring husband him pay any to sum or sums for the support of his both, wife or children or the court may issue the appropriate of writ execution against any prop- erty, real or personal, belonging to the defendant to order, decree, enforce said or judgment, and the said court may execution, issue a writ of attachment or inwrit the execution, nature of attachment against any or money to which property entitled, said husband is whether under otherwise____ what is known as a spendthrift trust or

303 or order, decree The Act specifically above refers to an jurisdiction.4 a of competent court by entered judgment Act no reference to Jones, makes supra. Because See Legisla must we infer that the support agreements, private apply agreements. for to such ture did not intend it to 201, 170 404 Pa. A.2d Township Whitpain, Rossiter v. of Furthermore, not Hollman are Mr. and Mrs. 586 purports section 136 to category persons of which that are divorced are simple they for the reason protect, 5 and “wife.” longer no “husband” legal a obli It is husband’s well-established aby his wife terminated valid divorce gation support to See, Smith, v. ex rel. Smith e.g., decree. Commonwealth 203, (1978); 1224 v. 260 393 A.2d Watson Wat Pa.Super. (1976);

son, Commonwealth Pa.Super. A.2d (1974); Platt, 227 ex rel. Platt Jones, As supra. rel. Jones v. Commonwealth ex Jr., of Spaeth, Judge B. now President Edmund Honorable Court, Smith, unity “once the marital has stated severed, regard each former must start spouses been Id., 260 at legal strangers.” Pa.Superior other Ct. as This is altered the 1980 Divorce by 393 A.2d at 1224. alimony, as the stat Code, provides post-divorce if is not obtained alimony ute is clear that before addition, attaching procedure 6709 for under Pa.C.S.A. solely owing pertains wages person duty support also of a of support: court-ordered wages, to attach etc. § 6709. Procedure duty any person owing a wages, salary of of or commissions The by general prescribed rule. in the manner be attached wages, salary or employer may commissions of deduct from paid under the order for reimburse- of the amount the defendant 2% order, (emphasis complying expense with the involved in ment added) provides: duty support, which defines § Support”. Pa.C.S.A. imposed any duty or “Duty of Includes order,.... any imposable or law May has been restricted to the Act applicability of 5. The parties. marriage between still where there existed instances interpreted Thus, be "wife” are not to the terms "husband” Lippincott v. or former wife. See encompassing a husband former (1944). See also Barno v. Lippincott, 349 Pa. A.2d (1976) (citing Lippincott). Farruggia, 6 Pa. D. & C.3d 727 divorce, as an marriage, incident it cannot be ob tained entered, once decree is since the is relationship terminated. Nor is there any change the law virtue of the Divorce it Code as relates to separation agreements for post-divorce support, incorporated which are not into above, the divorce decree. As nothing stated the 1980 Code Divorce can be construed be relevant to a divorce and agreement many years entered into its before enact ment. Young, supra. agreement enforceable by the same as a longstanding means court order. This rule law Schmitz, was reiterated in supra. Applicable Rules

C.— A further uniqueness indication of the an or alimony support agreement is evident in the Rules of Civil Proce- dure regarding support. See Pa.R.C.P. et seq. Rule 1910.1, provides: titled “Scope”, Scope

Rule 1910.1. (a) Except (b), as provided by subdivision rules of this govern civil or chapter proceedings all actions brought in pleas court of common duty to enforce a of support, b) The rules of chapter govern shall not

1) proceedings actions or for upon based (c) a contract agreement or unless the contract or agreement provides that it be an enforced action rules;____ accordance with these The agreements pursuant to these rules are enforced 1910.11, those entered pursuant rule which provides: Subsequent Rule 1910.11. Office Conference. Pro- ceedings. Order

d) If an agreement ... is reached at the conference, the officer shall order in prepare written conformity agreement with the for signature by par- ties and to the with together submission the offi- cer’s for approval disapproval____ recommendation or (f) permit entry Rule 1910.11 and (g)

Sections if an issue arises by order or de the court hearing the novo 1910.12 provides determination. Rule requires which court officer permanent hearing a for a similar with procedure (who by to be filed attorney), exceptions must an with be Thus, court. it be party, by dissatisfied to determined in possible apparent types agreements there are three to 1) agreements unrelated Pennsylvania separation law: in involvement, 2) support agreements court inherent any incor resulting in a court order support procedures 3) (Pa.R.C.P. 1910.11, 1910.12), and an porating agreement prior into to the agreements, entered voluntary alimony (See 23 in the divorce decree. P.S. incorporated divorce but 1920.31, 401, 502, allowing support and Pa.R.C.P. § 1920.52, follow as to Pa.R.C.P. which rules proceedings, and support). actions civil is not enforceable separation

The effect is that a contract under rules or the procedures support to court pursuant are Code; agreement orders enforceable support Divorce rules, agreements and alimony to support pursuant Di- through the incorporated in a decree are enforceable support for personam This includes actions vorce Code. proceedings by which are enforced under P.S. § 1910.20-1910.23, support other civil to with pursuant § for exception any actions. There is one order against or can be enforced wife, either husband support, proceeding pursuant in rem to P.S. 136-141. an § Stein, 487 Pa. A.2d 1381 See Stein categories fits none agreement judice sub Rules, et nor seq., Pa.R.C.P. enforceable under 133-141, pursuant to Divorce to nor pursuant 48 P.S. § contempt Code, may order be enforced A 1910.12, wage attachment Rule proceedings pursuant 1910.22, upon judgment and execution pursuant Rule fashion, an In a similar to Rule 1910.23. pursuant arrears rules, under the order be enforced alimony Code, support agreement A supra. or the Divorce supra, assumpsit, specific by an action only can be enforced performance, or upon obtaining judgment on arrears and execution against property. case,

In the instant the former wife was incapable of having the original support agreement incorporated into decree, the divorce permissible which is under the present Divorce Code.6 By procedure, allows to review the terms of original support agreement (§ 501(f))and upon incorporating it decree, into the divorce agreement merges into the decree.7 In Commonwealth Tokach, ex rel. Tokach v. 326 Pa.Super. 474 A.2d 41 (1984) Johnson, J.), (Opinion by this Court clearly distin guished incorporated agreements which are enforced as orders of court from unincorporated agreements which are enforced by assumpsit actions. See also Madnick v. Mad nick, 339 Pa.Super. We cannot rewrite the prior divorce law to treat the present agreement as though it could have been incorporated and thereby, transform it into a support order. Mary could not pursue procedure, this and she must be treated as an ordinary creditor in her efforts to execute the judgment against Schmitz, Wade. It supra. is well known that the reason for divorce reform evidenced by the Act of 1980 was to cure some of the economic inequities, including the injustice by caused non-incorporated separation agreements. How ever unreasonable and inadequate support agreement 501(e), (f) provides: 6. Section of the Divorce Code Alimony § 501. (e) Any pursuant subject order entered to this section is to further upon changed order of the party court circumstances of either aof continuing whereupon may substantial and modified, nature such order be terminated, reinstituted, suspended, or a new order made. Any apply only such payment accruing further order shall to subse- quent petition requested to Remarriage for the relief. of the receiving party alimony shall alimony. terminate the award of (f) approve agreement Whenever the court pay- shall an for the alimony voluntarily ment of parties, entered into between the such agreement shall be deemed the order of the court and be (footnote provided omitted) enforced as in section 503. practice incorporate separation It is common support to and/or agreements Marriage into divorce decrees. See Uniform and Divorce Act, 306(d)(1). Am.Jur.2d, Separation See also 24 Divorce and § 840. trade-offs, agree- there is the case in appears,8 any were law, permanency irrevocability, ment. Under and current here, in the same such as can be obtained only fashion— incorporated not into the decree. See agreement —which alimony Tokach, approved If was a court supra. modifiable, it and and agreement, would be reviewable rehabilitative, time limited and restitutional. concept is 501(c), at the order (e). only guess We can what P.S. § duration, if to pursuant and its entered would be (pre-1980), be- prior law. divorce law present Under petitioner and that the necessity prove fault cause agreement was innocent a lifetime injured, was Thus, useless marital freedom. it is key to frequently agree- of a support to rationalize the conditions attempt law philosophy in 1969 with the ment entered into in 1983. effect parents children the welfare of whose

Concerning involved, are our courts have agreements when are divorced fail to support agreements which consistently disregarded See, adequate e.g., for minor children. provide n. Hall, n. Pa. A.2d Brown v. Snively, v. 206 Pa.Su 11; Snively ex rel. Commonwealth Furthermore, (1965). duty per. A.2d 905 is and survives a decree ongoing one’s children support 503, 371 Silverstein, 246 Pa.Super. v. divorce. Silverstein Thus, support today, with our decision A.2d 948 of children remain intact. rights addition, in no that should way implies our result there

In from exception exemption an to the attachment not be enforce is followed to pensions proper procedure when the Therefore, wholeheartedly agree obligations. we support apply they as far as Young decisions Magrini with the competent jurisdic- by a court of orders entered support us, however, only there was In the tion. case before into not incorporated which was private support agreement therefore, readily is divorce; the instant case the decree Hollman, v. Hollman at 8. 130 P.L.J. 64.

distinguishable Moreover, from Magrini.9 as discussed above, present dispute governed by the rationale of this Court’s decision in Schmitz.

Subject Matter Jurisdiction The next bothersome issue this case relates to the jurisdiction of the Civil Division of the Court of Common Pleas to enter judgment and order of attachment dated June 1981. As noted above footnote the first order entered to attach pension fund was issued aby judge of the Civil Division of the Allegheny County Court of Com- Pleas, mon the second order dismissing attachment of fund, the pension emanated from the lower court’s Family Division.

Article V of the Pennsylvania Constitution establishes the System Judicial of Pennsylvania. The Schedule to the Article Judiciary provides for the composition, jurisdiction and administration of the Judicial System, provision and its shall have the same force and effect as those contained in the numbered sections of Article V. Section 17 of the Schedule provides:

ALLEGHENY COUNTY 17. Courts §

Until otherwise provided law: leading It should be noted allowing federal cases pension protect attachment support funds in order to familial have only upheld support private support agreements. orders and not See Riecker, (2d Cody Cir.1979); v. Telephone 594 F.2d 314 American (2d.Cir.1979); Telegraph Company Merry, v. Cartledge 592 F.2d 118 Miller, (S.D.N.Y.1978). F.Supp. Baker, 3d, (1978), Baker v. Pa. D & C the court held that the Act, exception Pennsylvania Support in the Civil Procedural Act of 13, 1953, 2043.39, July formerly P.L. Sec. 62 P.S. § now 42 6709, permitting wages Pa.C.S. pro- the attachment of ceedings, applies only in the case of court orders and not to private support agreements parties. between the As in the instant case, agreement parties the between the in Baker was never reduced to Although by a court order. we are not bound this decision of the County, of Court Common Pleas of Montour we nevertheless conclude reasoning that its is correct. of a trial shall consist (a) pleas common The court of family court division, division and orphans’ an court general and jail terminer division; oyer courts of and the county the the peace, sessions of quarter and delivery court, court are and the court, juvenile orphans’ the shall be exercised present jurisdiction and their abolished provided otherwise pleas. common Until the court of by and, except as pleas rule of the court of common by schedule, the court of common in this provided otherwise court of present the of the jurisdiction shall exercise pleas through court the present county pleas common and by rule provided otherwise trial division. Until the present of pleas, jurisdiction of common court court, this provided as otherwise except orphans’ schedule, pleas the court of common shall be exercised division. through orphans’ court of court of rule (b) provided by otherwise Until shall exercise pleas common pleas, common of through in the matters jurisdiction following fami- court division: ly

(i) nonsupport Desertion or Domestic Relations: of chil- wives, parents, including indigent children and wedlock; habe- including proceedings, out dren born of children; and annul- divorce custody corpus, for property thereto. relating matters ment and juris- within the All matters now (ii) Matters: Juvenile court. juvenile diction Certificates, (empha- Birth

(iii) Delayed Adoptions added)10 sis Criminal, divisions to exercise for other provides

The article mat- subject matters. (Trial) Orphans’ Court Civil exercised in the have been properly should ter this case first Division, proce- and the entertainment Family Division was the Civil judgment sur dure an order Judiciary 26(b) July P.L. No. 10. Section of Act 27, 1978, supersedes and sus- generally June effective Act pends upon upon which the absolutely the date effective this section by general absolutely rule. No such suspended provision is or was writing. promulgated as of general been rule has 310 350, Balter,

improper. Pa.Super. See Balter v. 284 425 (1981).11 A.2d 1138

There is a that the Divi- possibility of construction Civil in this matter from the properly jurisdiction sion exercised Guerin, 400, 3, in Pa.Super. footnote 296 409 n. Guerin v. (1982). 442 did not A.2d 1113-14 n. 3 Guerin turn on agree- division had but whether a jurisdiction which order, case of ment could be modified as is the have here. To the extent that footnote 3 analyzed which we authority of relies on 42 Pa.C.S.A. 952 as Guerin § division, exercise the of other it any may power any division establishing flies the face of the reasons divisions meaning the court and the actual of section 952. Section V, for Article simply implementing 952 is an statute Section provides as fol- Pennsylvania Constitution lows: pleas of common 5. Courts

§ court of common for each pleas There shall be one (a) having consisting district such divisions and judicial law, one judges provided by such number of as shall be and president judge; whom shall be (b) original jurisdiction unlimited all cases having law. except may provided by as otherwise be 4 of the to Article V of the Constitution Section Schedule provides: pleas of common 4. The courts law, the several courts of provided by

Until otherwise vested in pleas jurisdiction common shall exercise now Balter, Court stated: suggest assign Clearly, it would be anomalous to that divisional properly among pleas could be charac ments the court of common jurisdiction. relating anything subject to other than matter terized Bank, See, e.g., Pittsburgh Brumm Nat'l 249 otherwise, (1968). deny appellate hold review no A.2d 916 To plaintiff’s patently selection of division matter how erroneous be, obliterating law the broad areas of would be tantamount pleas its the court of common is to direct which each division of Sheridan, A.2d generally Posner v. 451 Pa. attention. See Id., Pa.Superior A.2d at 1141. Ct. at present courts of The courts of pleas. oyer common general quarter and terminer and sessions of jail delivery, peace, orphans’ courts are abolished and the pleas several courts of common shall also exercise the Orphans’ judicial of these courts. courts jurisdiction shall having separate orphans’ districts courts become common orphans’ pleas court divisions of the courts of in districts pleas judicial and the court of common those shall exercised jurisdiction presently by exercise the separate through respective courts their or- orphans’ phans’ court division. provides

While section 952 the Judicial Code “[i]n having court of common two or more divisions each pleas jurisdiction division of the court is vested with the full 5103(c) court”, by the whole this is delimited section directs: or other appeal an transfers. —If

(c) Interdivisional to, in, brought matter is taken or transferred to a division law, such matter is not allocated by of a court to which not such or dismiss the quash appeal the court shall matter, to the proper but shall transfer the record thereof court, other matter appeal division of the where the or in transferee originally shall be treated as if filed magisterial in or division on the date first filed a court district. dicta, fully 4 it does not only

Not is footnote of Guerin in Posner v. by Eagen state the law. As stated Justice (1973): Sheridan, A.2d 309 451 Pa. 299 had felicitous result of the 1968 Constitution While amalga- separate old courts and abolishing system nothing mating pleas system, them into a unified common file com- plaintiffs provisions permits these new re- docket them without plaints, willy-nilly or courts to of fact the point division. gard appropriate to the estab- Judiciary to the Article language of the Schedule otherwise, (footnote omitted) lishes example, for that even under question, Is there any for an estate inappropriate it would be new Constitution To ask the court division? probated family be where it. If it makes no difference question is to answer docketed, to what then we are left to wonder a case was the drafters of were such divisions created purpose the 1968 Constitution. 58-59,

Id., Pa. at 299 A.2d at 312-13. assumpsit an action debt Posner was Paradoxically, decree, majority and while the based on California the Family within necessarily inferred it was a matter case, it remanded on which heard jurisdiction, Division Dissenting Opinions Concurring In four other matters. on a assumpsit an action based the consensus was that Family juris- Court properly matter was within diction. in the rate, appropriate file an action

At failure to any Pomeroy is not fatal as stated Justice jurisdiction A.2d 1129 Wadzinski, 485 Pa. Commonwealth (1979), (1978), remand, on (1980): Pa. 422 A.2d grounds, rev’d on other reconstituted, possesses pleas, of common The court pleas, courts of common of the former jurisdictions terminer, sessions, and oyer courts of of quarter courts courts, purposes of the courts. One juvenile and orphans’ is, course, simplify procedure unified court of the A case system. the judicial archaisms from and remove wrong in the brought because not be dismissed in jurisdiction there is court; matter is justiciable, if the it, in a multi-divi- to hear and pleas of common the court wrong in the case bringing for remedy sion court dismissal, the matter to a transfer of but is not a division division, omitted) (footnote the correct He then cites 254, A.2d at 1132. Id., at 485 Pa. V, and p. footnote Article 5 of Section provisions Code, footnote 5103(c) Judicial 952 and sections 1132, 1133. pp. Division had while the Civil conclude that

Thus we matter, the appropriate and decide to hear jurisdiction Division Family to the this action to transfer action was application in the disposition, which would have resulted bring Division could greater expertise Family which court, determination, in the lower to its consistent decisions overruling of one appearance judge and avoidance the decree of another judge. 22, 1982

Accordingly, we affirm the Order of December Division and vacate the Order of June Family entered 4, 1981 entered in the Civil Division.

SPAETH, and Judge, President and CAVANAUGH TAMILIA, J., McEWEN, JJ., as to join except subject JOHNSON, matter on which issue J. jurisdiction, they join JOHNSON, J., dissenting concurring opinion files and ROWLEY, joins. J. SPAETH, Judge, President CAVANAUGH McEWEN, JJ., JOHNSON, J., as to matter join subject jurisdiction only.

BROSKY, J., dissenting opinion. files BROSKY, Judge, dissenting: 4, 1981, I

I dissent. would affirm the order of June Pittsburgh, No. 707 1981 and reverse the order of Appeal 23, 1982, Appeal Pittsburgh, No. February is, indeed, consist- majority’s disposition The of this case Schmitz, Pa.Super. 451 A.2d ent with Schmitz v. However, I following for the reasons would overrule Schmitz. Mag- case of Commonwealth ex rel. Superior Court (1979), Magrini,

rini v. to that statutory language identical interpreted virtually analyzed Schmitz.1 drawn specifically of statutes were

Clearly, types these (or she) could not beneficiary’s family the so he protect to dissipate judgments, means of creditor voluntarily byor a means of family assets and leave his without the 8124(b)(1)(vii). interpret analyzed The statute § 42 Pa.C.S. 1. Schmitz Magrini is 40 P.S. 515. ed in support. this, view of interpret we decline to the Act supra, protect to a delinquent husband’s pension funds from attachment support.3 for enforcing support Additionally, a order is not we note that a wife Peterson, v. 100 Pa.Su ex rel. Peterson a "creditor." Commonwealth per. 600 supra, Magrini, rel. Magrini ex Commonwealth 370-1, A.2d at at Pa.Superior Ct. that, exemption being not

Thus, the appear it would in these circum- an would be valid attachment applicable, However, factor. complicating there is a stances. a above, enforcing support a wife states that

Note opinion the a This where is not creditor. order court below relied—comes which the en banc Schmitz—on play. into of the cash attempted garnishment the involved

Schmitz satisfy to policies arrear- of life insurance surrender value In an agreement. a support owed under payments ages steps the first two opinion parallels the holding, alternative exemption and statutory a noting similar analysis: our payments. exemption to exception parties were to that since then went on state Schmitz exemp- divorced, exception to was creditor and she a apply. did tion we do not believe

In the instant case [Commonwealth 438, 51 A.2d 523 v [160 .] Berfield emphasized It must be controlling. (1947) language is ] longer legal is no a There were divorced. parties im obligation here is The husband and wife. unity of from arising as an incident so than more in contract posed of divorce termi An decree marital status. absolute or her former his spouse a duty nates the sup providing separation agreement Although spouse. divorce, subsequent to spouse for a will continue port legal relation a contract. on obligation is based been severed. marriage has ship precludes divorce Therefore, the Schmitz’ find that we the marital status. relevant applying policy from us Appellee must be considered a creditor judgment and thus, law, under her Pennsylvania garnishment the cash surrender of the life policies value two insurance cannot allowed. be

Schmitz, supra, Pa.Super. at 451 A.2d at 557 (citations omitted).

The is holding couple Schmitz clear. Once a is divorc ed, the exception support exemption to the statutory longer from attachment no The in applies. facts Schmitz from those us in vary only particular. before one Schmitz 8124(c) exemption— involved Pa.C.S. insurance § —the not, here, 8124(b)(1)(vii) pension as 42 Pa.C.S. § —the exemption. This sole in no renders way difference the holding of inapplicable Schmitz to the case before us.

fact, unless would resolution rejected, govern Schmitz our of the issue in question. follow, therefore,

From it would since Schmitz that Wade Mary during support were divorced at all times made, payments exemption were not the from attachment in 8124(b)(1)(vii) in Pa.C.S. is force here. However, in conscience I that good do not conclude this the law presently Court should follow as it stands. The in creates unjustified exception rule Schmitz an to rule Further, Magrini. exception applies to vast majority parties cases—those which the are divorced. rationale,

The created exception ignores Schmitz above, quoted of the from Magrini exemption case. designed protect attachment statutes were to interests least, perverse, It is to that those family. say deprive family support. statutes should be used to does not once statutory purpose inapplicable That become are divorced.2 parties regard especially true to the children of a 2. This would be with marriage. why comprehend the divorce of the terminated I fail very parents deprive means to childrens' should the children of the relationship. parent-child support. Divorce does not alter the obtain interpreted Magrini, Nor statutory purpose, is the inapplicable by virtue of fact that instant default arose out instead of judgment support agreement of a superficial appear- order.3 While there be a seeking ance she Mary a creditor because was contract, readily support a apparent enforce a it is is, not a contract for our agreement type is standard of but sui generis. In terms purposes, statutory purposes, of the Mary totally indistinguishable has not become a creditor — did grocer simply from Wade’s or because she tailor — as an support agreement to court and have the entered go Magrini rights order. Her are still those which seeks to special give protection.

A would us in the of contrary put position conclusion individuals, capable are who otherwise of amica compelling them, agreement out a between to bly working support support to court to seek a order. go each hire counsel and to of expense injection The and the the adversarial added and public private the of matters the process exposure and would, procedures inherent in those be the inev formality itable, of such unnecessary consequences undesirable and This also counter the laudable requirements. would run to he children. When a husband divorces a wife does not divorce their duty parents provide Specifically, their children the the to for of are children in- after the Even when there no continues volved, divorce. here, spouse within the support the of the former comes as Thus, the statutory purpose. I would find no rational basis for effect support opinion case us. Where the on the before Schmitz children, apportioned the it would be between wife and order is not prevent counterproductive to childrens’ to the assets the interests being attached. approval opinion of I note with the the connection would this granted hearing "Under divorce laws the attachment. divorce, alimony paid to be the time no could that existed at matrimony. That spouse after a from the bonds former divorce case, spouses being it at all uncommon induce was not entering support agreements. forego by ... contests into divorce support entered order will not draw a distinction between This court by agreement support entered competent jurisdiction and a a court of obtaining voluntarily parties in to facilitate the into order agreement as such is was The one divorce. public policy Hollman v. Commonwealth.” favored (1981) (Wekselman, J.). Hollman, Pgh. L.J. at 64 trend in family law of reducing litigiousness encourag ing informal resolution.4 when, here,

Schmitz is even unwise no children are involved and the support order only is for the benefit of the spouse. divorced spouse’s The former duty to support the spouse other is an going on one. It is similarly undesirable if even order apportioned between the chil- dren and the former spouse. are, all, children after living with that former spouse and must share in her destitution if the support order cannot be enforced as to her. The rationale of exemption applies statutes under these circumstances. I conclude that Schmitz should be expressly overruled.

JOHNSON, Judge, concurring and dissenting: I concur in so much of the Majority Opinion as deals with issue of whether pension payments are to at- subject in tachment satisfaction of a judgment entered for arrear- ages in payments due under a I agreement. in join ruling the of the court which vacates the order entered on 4, June 1981 at GD 81-11344 and the order entered affirms 22, December 1982 at FD 81-10538. I am constrained to dissent from portion that of the Opinion Majority which would find improper the entertain- ment, by the Civil Division of the Allegheny Court County Pleas, of Common of assumpsit an arising action out of a support agreement. The majority relies on the panel major- in ity opinion Balter, 350, Balter v. 284 Pa.Super. 425 A.2d (1981) for the proposition that assignments divisional among the court of common pleas could not relate [within] to “anything Id,., other than subject matter jurisdiction.” 356, 3, 284 Pa.Superior 1141, Ct. at fn. 425 A.2d at fn. 3. I find the carefully reasoned dissent by my esteemed colleague, Judge in Cavanaugh, Balter most per- be law, suasive on this analysis issue. His of the case and his rejection notion that a jurisdictional issue is raised Through, example, mediation. a common merely by consideration of the division within is, view, in pleas my court an action is commenced which Balter, 284 Pa.Superior supra, unassailable. See Balter v. (Dissenting 360-64, Opinion, A.2d 1143-45 Ct. at at J.) Cavanaugh, the appeal, two-judge

Although majority the on this 17 of the Balter, rely on Section Sched- majority heavily Constitution, it would Pennsylvania ule to Article V of the of its good vitality 17 has a bit seem Section lost 1976, 586, 9, the of Act of P.L. July virtue of enactment 1976, 142, effective June Judiciary generally Act of No. 26(b) thereof: provides which Section (o), (b) (p) (q) of section and sections Subsections of to Article V of the Constitution 17 and Schedule 23, 1968, hereby super- are Pennsylvania, adopted April upon effective the date absolutely and suspended seded. absolutely suspended is or was upon provision rule. by general 2 of Act No. enacting

In the Judicial Code [Section of dealt with status expressly our supra], legislature court divisions as follows: 952. Status of court divisions are pleas of common adminis-

The divisions of court of the court composed of those judges trative units of classes of specified the transaction responsible for pleas common of the court. court business court each division two or more divisions having the whole court jurisdiction vested with the full among be allocated court but the business of or pursuant general divisions 2, 586, 142, 9, P.L., effective 1976, No. July rules. § 42 Pa.C.S. June added).

(emphasis months after this court thirteen by a case decided Judge Lipez, colleague, Balter, distinguished in our decision recognized three-judge panel, for unanimous speaking Code, any 952 the Judicial that, virtue of Section by action, assumpsit jurisdiction have would division 319 type to which that it was the division of whether regardless v. assigned. Guerin administratively of case had been 1112, 1113- 3, 442 A.2d Guerin, 400, 404 fn. Judge recognized by first (1982). point This was 14 fn. 3 in his Balter dissent. Cavanaugh collecting the job has done a careful

Judge Cavanaugh Balter, deci- issue, including the to this pertinent cases Focus on Renewal in Sto-Rox of our sister court sion King, v. 40 Pa.Commw. Corporation Neighborhood Mencer, J.). purpose No (1979) (Opinion by 398 A.2d here. analysis his excellent repeating served would be Balter, I also Cavanaugh Judge As observed court in Binder supreme our holding conclude of its (1974) has lost none Miller, 317 A.2d 456 Pa. we must law which value, remains the precedential a court of division of as to which question follow. commencing an forum proper is the pleas common is not agreement involving assumpsit action pleas common but of internal of jurisdiction, one 51, 299 A.2d Sheridan, 451 Pa. Posner v. administration. Stein, rel Stein v. Accord, ex Commonwealth Miller, supra. (1979); Binder v. A.2d 1381 Pa. supreme court from our await a decision I’m prepared dissent. Hence this otherwise. which holds

Case Details

Case Name: Hollman v. Hollman

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 1, 1985

Citation: 500 A.2d 837

Docket Number: 707; 1

Court Abbreviation: Pa.