703 A.2d 1049 | Pa. Super. Ct. | 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,
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.
DISCUSSION:
Despite the fact that appellant posits three issues,
The first issue was recently resolved by the Pennsylvania Supreme Court in the case of Nicholson v. Combs, — Pa. —, 703 A.2d 407 (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.”
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.
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 22, 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, — Pa. at —, 703 A.2d at 416-17 (1997).
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.
. The parties have two children: Daniel born on November 20, 1979, and Lisa bom on May 27, 1982.
. Appellant and her children reside in Tacoma, Washington.
. At that time support payments were being made directly by father to mother per the agreement.
., This order also addressed alimony payments, which remained at $200.00 per week, and father’s obligation to provide medical insurance for the children.
. The court also granted mother the right to claim Daniel as a tax deduction, and ordered father to reimburse her for medical expenses.
. Despite the absence of a court order reflecting this agreement, the DRO began forwarding
. Testimony was presented on two issues: the emancipation of Daniel from the mother’s care and the income of each parent. The court found that father was obligated to support both children; that father had not intentionally reduced his income by giving his current wife a half interest in his business; and that the amount of income assessed to mother by the domestic relations officer should be reduced.
. See Pa.R.Civ.P.1910.16-1.
. Appellant phrased her issues as follows:
Did the lower court err by refusing to consider enforcement of the child support provisions of a marital settlement agreement when the Rules of Civil Procedure allow for enforcement of the agreement?
Did the lower court err in failing to enforce the child support provisions of a marital settlement agreement when the parties to the agreement agreed that it could be enforced in any available forum and could not be waived absent written agreement to such waiver?
Did the lower court err when ruling that despite a Rule of Civil Procedure allowing for enforcement of support agreements, the appellant had waived any and all right to enforcement of the child support provisions of her 1988 marital settlement agreement by filing a petition for child support?
Appellant’s Brief p. 3.
. We note that the present appeal is taken from an order granting father's motion to modify his support obligation; it was not initiated by a petition to modify the marital agreement.
. Legislative amendments to the Pennsylvania Divorce Code, effective February 12, 1988, added the following language:
(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
23 P.S. § 401.1(b), reenacted at 23 Pa.C.S. § 3105(b). See also Sonder v. Sonder, 378 Pa.Super. 474, 545, 549 A.2d 155, 191 (1988).
. The trial court stated only that:
Plaintiff's decision to forego her contractual right to sue in order to seek the more immediate relief available to her in Family Court precluded her from challenging any future orders by relying upon the terms of the agreement.
Patterson v. Robbins, No. A06-88-60295-S, Court of Common Pleas of Bucks County, Slip Op., p. 3.
. We note that in this case mother has already filed a separate equity action in the Court of Common Pleas of Bucks County asserting a cause of action on the contract.