*1 obligation respond, his under no wife were Appellee implied by these nor could their admittance of averments be 3206(b) 3207(b) respond. their failure to Pa.R.C.P. interpleader the deal with a sheriffs when specifically claimant to real estate. against determines for or sheriff sentences of rules state: The last two both interpleader shall be at filing objection Upon plaintiff claimant shall and all issue in which the be The only interest shall be defendants. parties other claim, shall shall be the all averments pleading deemed to be denied. be entitle the
Thus, respond failure to does not Appellee’s pleadings to a based on written Appellant judgment due to of fact cannot deemed admitted material issues the above rule. mind, find that the Appel- we analysis
With the above presumption by not ade- lant failed to create rebuttable at the time establishing Appellee’s indebtedness quately alleged pre- As the conveyance question. he made created, the did not proof never burden sumption was Therefore, the trial Appellee shift to the his wife. its order based on issuing court was warranted pleadings. written AFFIRMED.
ORDER
Filed *5 Prussia, appellant. for Miraglia-Lecky, King Catherine Casper, Philadelphia, appellee. Howard J. CAVANAUGH, CIRILLO, Judge,
Before President ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, POPOVICH, TAMILIA and JJ.
TAMILIA, Judge:
These cases were consolidated for appeal certified to *6 issue, banc single Court en for review a that being a property whether settlement providing for the payment incorporated and into divorce a decree merged thereby with decree becoming modifiable by a courts of a material in upon showing change circumstanc- es.
Suzanne Sonder and Carl Sonder were on married Novem- 8,1968, separated ber in and 18, divorced on December 1985. children of the marriage, M., Two were born a son 25, A., May 1970, born on a daughter, on born Novem- 28, The parties ber 1973. entered into a property settle- (P.S.A.) 29, ment agreement 1983, on November included for provisions spousal child support payments at the rate of Prior per week. of the entry $800 divorce decree, litigated was and determined to be (Order 27, 1985). an enforceable contract of March Upon decree, issuing the divorce the agreement its by terms incorporated was to be into the merg- decree without (Divorce Decree, 1985). into ing 13, it December pur- The pose for as parties disagree contested as to it was to whether insure the survival of the an subject enforceable contract not to later modification by court, or intended to an become Order of court subject the control the court over future modified payments, terms and enforcement. For purposes clarity, we will appeal separate consider each in a section according to the issue presented.
A. VALIDITY OF PROPERTY
SETTLEMENT AGREEMENT The appeal, 1985, first at No. 02259 Philadelphia, is from an denying 27, Order to the exceptions Order March which affirmed settlement property agreement entered parties 29, into by the dated November 1983. At the time in specific of this action equity performance for P.S.A., merged it had not been or incorporated into the decree, although a complaint divorce in divorce had been Sonder, plaintiff, 17, 1984, Mrs. on July filed defendant, after Montgomery which the Dr. County, Carl Sonder, filed complaint a divorce in Chester County. 16,
The
complaint
equity was filed on
October
hearing
28,
a
was
January
set for
1985 on the equity
complaint.
defendant,
on Friday, January
petition
preliminary
filed
nunc
objections
pro tunc and
an answer to
complaint
and new
equity
matter. On
Monday,
January
hearing
and,
held
27, 1985,
March
the Honorable Albert
entered
Subers
denying
Order
appellant’s petition to file preliminary objec-
pro
tions nunc
granted
tunc and
Mrs. Sonder’s motion to
enforce the
settlement
property
agreement and directing
appellant
with the
comply
terms of the P.S.A. in total.
*7
Exceptions
8,
were
1985,
filed to this Order on April
with a
petition for hearing en banc on the
to
exceptions
the Order
a petition
and
for
to file
exceptions.
leave
additional
On
20, 1985,
June
argument
exceptions
on these
was held
before the en banc Court below at
appellant
which time
to quash
moved
proceedings
and
strike
rescind the
27,
1985,
Order of March
20,
1985. On June
appellant filed
additional exceptions
27,
to the Order of March
1985. On
2, 1985,
August
the trial Court en
issued an
banc
Order
denying appellant’s exceptions
27,
to the
Order March
1985,
August 28,
Sonder,
1985. On
appellant, Dr.
entered a
for
praecipe
judgment and notice
appeal
perfect
appeal.
record,
instant
Upon reviewing this
we see nothing
to disturb the decision
trial court. See Litwack v.
Litwack,
405,
289 Pa.Super.
(1981) (court
However, as to that appeal, the issue as to the
validity
the agreement moot
rendered
when appel
insisted
lant
the agreement be
in the
incorporated
divorce
decree, which was then accomplished
decree dated
13,
December
G.D.H.,
1985. See K.L.H. v.
318 Pa.Super.
330,
(1983);
482 Montone, 541, (1974) (exist- 227 323 A.2d Pa.Super. 763
ence of actual is essential controversy appellate jurisdic- rendering if occurs it for impossible appellate tion and event relief, moot). issue is No grant any appeal having decree, taken from the is rendered valid been incorporation judicata and renders the issue res as will be explained below.
B. CONTEMPT ACTION ON UNINCORPORATED P.S.A. 1985, appeal, Philadelphia,
The second
No. 03025
attempt
from
to enforce the Order of
appellee/wife’s
flows
27,
1985)
March
at No. 02259
(appeal
Philadelphia,
the terms of the
directing appellant
comply with
P.S.A.
Sonder,
Appellee,
petition
contempt
Suzanne
filed a
and,
the March 27th
following hearing
Judge
Order
before
Stefan,
Louis
entered on
October
Order was
adjudicating appellant
contempt
October
$29,800
him to
sum of
ordering
pay
total
“forthwith”
$1,000
enforcing
counsel
fees and
expenses
22, 1985,
agreement.
appellant
terms of the
On November
filed a Notice of
to this Court from the Order of
Appeal
24, 1985
is the instant appeal.1
October
Orders,
1. It is noted that in each of the above
while there were
findings,
Agreement
first that the
of November
1983 was valid
second,
(No.
1985)
Philadelphia,
appellant
was in
agree
pay
for failure to
the amounts accrued under that
enforcement,
(No.
1985),
Philadelphia,
as to
the first is
ment
*8
imposed
interlocutory
moot and the second
as no sanctions were
cannot, therefore,
appropriateness
this Court
rule on the
of the Order.
590,
(1987);
Weisberg,
Pa.Super.
See
Mc-
Steel v.
368
As indicated above at footnote in the Order of October 24, 1985, while a finding of contempt entered of specific Order performance imposed, no sanctions were therefore, imposed, powerless this Court is grant appel- lant relief on that Order since he has yet to suffer harm or We, therefore, penalty. are unable to allegations review his of failure defenses, to consider his if any, and the trial court’s procedural errors in conducting hearing. Thus our only course is to quash appeal at No. 03025 Phila- delphia, 1985 being interlocutory.
C. INCORPORATION OF AGREEMENT INTO
DIVORCE DECREE These proceedings moving were forward on two fronts and at the point of the entrance of the divorce decree on 13th, December they converged. earlier, As stated a di- vorce complaint was filed Mrs. Sonder on July (reinstated 1984) September, in Montgomery while County, Dr. Sonder filed for divorce in Chester County. Appellant, in answer and counterclaim to Mrs. Sonder’s divorce com- plaint, denied allegations of indignities and requested eq- uitable 4, 1985, distribution. On June appellant filed an affidavit of consent 201(c), under 23 P.S. and on June § 1985, appellee filed her affidavit of July 1, consent. On appellee filed a motion to transmit records under Montgom- ery County Local 1920.42(c) Civil Rules (conforming to Pa.R.C.P. 1920.42 and 1920.73 Praecipe Transmit Record). This was countered by appellant’s objections to the praecipe to transmit record because the praecipe con- tained a statement the agreement was not to be incorporated decree, whereas, into the fact, divorce agreement itself contained an incorporation clause (Agree- ¶ment, 17, 27). p. Following a hearing on the objection, an Order was entered finding moot Dr. Sonder’s counterclaims to the complaint filed by Mrs. Sonder and directing plaintiff to file an amended praecipe to transmit record requesting a Form 2 Divorce Decree which included an Order incorporat- ing P.S.A. but not merging it with the decree. *10 Order, divorce, Following using this a decree of Mont- 2, Form entered gomery County was on December 1985 signed Judge and C. This decree by Joseph Smyth. was and is valid and of appealed subsisting purposes never any proceeding further on this case.
The of the entry incorporating decree of divorce the P.S.A., from, unappealed confirms the validity the P.S.A. appeal contesting and the at No. 02259 1985 Philadelphia, is, above, therefore, validity its as stated moot. This is so as his action in insisting incorporation of the P.S.A. decree, into the Dr. acknowledged Sonder its existence and no validity. appeal Since was taken from the divorce decree incorporated agreement, the no issue remains as to agreement’s appeal at 02259 validity. No. Philadel- is, therefore, 1985 dismissed.2 phia,
D. MODIFIABILITY OF INCORPORATED AGREEMENT The apparent strategy of Dr. Sonder to have the was decree, part merged P.S.A. become of the be with the and, thereafter, court, decree as an subject Order of be review, arrears, pursuant modification and remission of alimony laws. goal, furtherance when a third action for enforcement of the presented by Mrs. Sonder in a Petition for Contempt, filed 3, 1986, January to enforce the Order of October 1985 (No. 1986), it Philadelphia, peti- was countered (No. tion to Philadelphia, 1986). reduce and remit (No. 01423) The Order in question appeal on that is dated 13, 1986, May and dismisses the to reduce petition and remit “for at least two reasons.” undertake to this We review appeal prior to considering companion appeal at No. Wieand, Judge Concurring Dissenting Opinion, 2. in his would brought find that the issue is not moot as Mrs. Sonder an action to above, compel perform agreement. Dr. Sonder to his As stated of, validity disposed is the issue which is different ability pay from enforcement or the of Dr. Sonder which are appealable issues. 1986,3 it as to Philadelphia, dispositive as will be both appeals.
Judge preliminary Salus heard argument from counsel and, regarding appellant’s petition recess, after a lunch petition jurisdiction. dismissed for lack May On 1986, Judge signed Salus a written dismissing Order petition for from reduction to remit arrears. It is at appeal Order No. 01423 Philadelphia, 1986 was taken. outset, At the it is proceedings clear that on the P.S.A. prior the time are governed by divorce the law of and, valid, if the agreement contract it is not subject to the remission of arrears and of pay- reduction amount a support ment would Order. As of December *11 1985, the the time divorce decree entered and the was agreement it, into incorporated was review must consid- any er it be construed as whether is to a court Order and not an agreement. agreement,
The which is contained in the “Divorce Decree 2”, form, Form Montgomery County Court reads the part: essential it adjudged is further ordered and and decreed
[A]nd 26-1980, to and pursuant Pa.R.C.P. 1920.1 et Act seq. 1, seq., terms, et the provi- P.S. Divorce Code that the § sions, and agree- conditions of certain settlement property parties 29, 1983, ment the dated between November attached to this decree and Order A is hereby as exhibit incorporated into this decree and by Order reference as as the though same were set forth at fully length. Said not agreement merge shall but shall this decree survive and Order. signed Decree Joseph
This Honorable A. by Smyth. agreement, The issue presented having is whether the incorporated, been is subject by now to modification the alimony Order entered support through the appeal Philadelphia, 3. May The at No. 01343 from an of Order finding appellant agreement support the the of $10,000 ordering pay him to that forthwith on or be jail days. to committed for 90 agreement. Upon court and not as an his review counsel, hearing argument and after from agreement, petition declined to hear the for arrears Judge Salus them, alleging jurisdic- and dismissed a lack reduction the argument A and discussion of tion. review of the record, on the is the only with the court which parties us, reason for divulge information available to does not the that decision. making the trial court below, For reasons stated we believe the trial court the dismissing petition was correct as it did have petition. to hear that jurisdiction confusion has en-
Since the Divorce Code
been
equate support agreements
gendered by
attempt
are contracts with
Orders which are crea-
tures of statute. Since the two are enforceable
distinct
distinguishable princi-
fashions and are governed by clearly
law,
homogenize
principles
these
into
ples
attempt
third
not envi-
unitary concept,
entity
which creates a
law,
elements of
entity,
sioned
must fail.
apply
binding
aspect
contract
to the
and non-modifiable
debt,
and serve to create a
whereas the
apply
enforcing
elements of a
Order
means
if
agreement.
interpret-
sub
so
judice,
ed, creates an instrument which
Accord-
is unenforceable.
ingly,
parties
we must look to the intent of the
as manifest-
give
legal
ed
it
effect.
language of
contracts
*12
statutory concepts
The distinction
contract and
between
Hollman,
289,
was detailed Hollman v.
Pa.Super.
347
issues)
(1985) (rev’d
other
A.— A and support or order is a creation of statute alimony marriage by an incident of the which is enforceable rel. operation of law. Commonwealth ex Smith Smith, (1978). 1224 Proceed- Pa.Super. 393 A.2d ings process require- relative to such orders contain due ments, findings scrutiny and evidentiary by involve appellate court as to their to review. validity, subject return for closely proscribed legal this proceeding with its safeguards judicial attendant and findings, legislature has extended to powers bring about compliance by granting courts the to right property wages attach and willfully delinquent and to incarcerate obligors. A fur- ther of power extension is the to right modify the or order vacate the upon showing changed arrears of circumstances, 501(e), P.S. and furtherance of the § process, provides that the court will have domestic rela- receive, tions sections and to personnel disburse and payments. monitor 23 P.S. Support 504. See Proceed- § ings, 42 et seq., superseded Pa.C.S.A. 6701 Pa.R. § Support; C.P. Actions for Revised Recipro- Uniform (1968), cal Enforcement of Support Act Pa.C.S.A. Thus, 6741 et seq. upon analysis, apparent it is § and extraordinary attributes conditions are attached to orders, support and alimony which become instruments of court, not of and to the control subject parties. agreements Were we make the enforcement of support of equivalent to the enforcement or alimony orders, then full panoply of enforcement would means available, Thus, become including jailing contempt. person jailed obligation could on an be never passed process the due accorded court orders and is subject change constant review for modification for of or circumstance ability pay. Support Agreements
B.—
comparison,
By
agreements,
they
separa-
whether
tion, antenuptial,
support,
postnuptial
are instruments
contract which the court has no
None
involvement.
the elements
due
process,
appeala-
review
these,
bility
agreements
are involved
such as
which are
private undertakings
parties,
having
between two
each
responded
‘give
negotiations
to the
take’
such,
bargained
governed
consideration. As
are
they
law contracts.
McChesney,
Steuart v.
Pa.Su-
[498
45, 444
per.
(1982)],
Hall,
A.2d 659
Brown v.
Pa.
[495
(1981)],
Litwack,
489
405,
A
reading
careful
of all the
clearly
cases
indicates there
has
any
never been
intent to foster an interpretation of the
law
contracts
whereby
and statutory provisions may be
applied
or the
interchangeably
non-modifiability of contract
Order; rather,
be
engrafted
support
a
the contrary is
quite
Hall,
evident.
Pa.Super.
Brown v.
435 A.2d
(1981)
provided
clearly
support agreements
were intended to survive a decree of divorce were enforce-
able
both as to
equity
past and future
payments
support
agreement.
under the
It
provided
was therein also
that a
subsequent
support,
reduction
through
imposi-
tion of
court-imposed support Order,
a
abrogate
did not
Millstein,
contract.
Subsequently, Millstein
Pa.
Super.
(1983),
490
appears
change
have been no
in the law as has been
Slatowski,
pronounced by
Silvestri v.
423 Pa.
224 A.2d
(1966),
212
an where
did merge
not
into the
Order, although
decree,
ratified
divorce
amount of support agreed upon can be enforced in equity
by specific performance according to the terms of the
contract.
It pointed
Colburn,
out that in Colburn
279
v.
Pa.
123 A.
(1924),
775
attachment
person
could
not issue in this
of
type
case.
Subsequently,
Tokach v.
Tokach,
Pa.Super. 359,
(1984),
326
To bring issue, about the clarification of this we return to the permits statute which merger agreements into divorce decrees be entered as court Orders. The upon basis which the court has the capacity for enforcement children, relating incorporated Orders into a decree, divorce found in 23 P.S. Decree of Court. § Therein, (b) section in pertinent part states:
(b) Any granting annulment, decree or an divorce shall include ... order or orders determining and disposing existing rights property and be- interests tween parties, custody and rights, visitation child support, and alimony other related any including matters agreements enforcement of separation voluntarily entered into parties. between the A reading this section no makes distinction between incorporation merger provides simply “an order including separation or orders enforcement of agree- ... into voluntarily parties.” By ments entered between language, placed this it not intended the court be in a agreements it would enforce fashion position any where law, provided by contemporary relying other than on the developed as it had until the time of the Divorce Code. law reality, property combines settlement separation agreement.4 and a It is clear contrac- obligations according are enforced to the assumpsit tual of law and Orders are enforced equity principles *15 of The statutory provisions accordance with law. Divorce of goes step providing merger Code one further for 501(f) In agreements. section it states: alimony Alimony, (f) the court shall an for approve agreement Whenever of entered into the payment alimony voluntarily between parties, agreement such shall be deemed the order of the may provided court and be enforced as section 503. 501(e), In 23 provides: P.S. Code § (e) Any pursuant subject order entered to this section is upon changed to further order of the court circumstances continuing of either of a and nature party substantial modified, whereupon suspended, such order termi- may nated, reinstituted order or a new made.
It is that an to a section agreement subject incontrovertible 501(f) Order, pursuant is an “order entered to this section.” agreement longer is no as a contract Such enforceable subject range change but is to the full of modification and 501(e). court permitted to Orders under section It is also to enforcement subject provisions provided by section hybrid separation agreement property 4. These cases involve a and separation agreement only support settlement. A concerns itself with property under certain is A and circumstances modifiable. settlement property rights says nothing support generally and about settles and is recognized being type as immune from modification. A is the third here, hybrid, property rights questions which both and custody agreement, generally and are settled. In such an it is recognized ability modify support provisions depends upon property provisions the interrelation of settlement 2(a). provisions. See 61 A.L.R.3d Modification of Divorce Decree § of arrearages.5 Enforcement For an voluntarily Order en- Order, tered into to be enforced as a court the language of clearly agreement the decree must state the is merged with Otherwise, the decree. it remains a contract is which is any enforced as other contract equity.6 law or Since settlement/separation agreement a property can encompass any the varied and multiplicity of marital disputes, is in enforcement accordance with law as it in each developed category of marital proceedings. could contain relating well conditions to eq- distribution, concerning uitable marital property, terms visi- matters, tation and custody alimony support. as well as matters, construing these the court given full equity bring powers proper disputes about resolution any arise may agreements. agree- under While the arrearages, payment permits 5. Section in order effect 2) 1) judgment; court enter personal property to: take and seize estate; 3) profits up per collect of rents and of real attach to 50 cent of 4) installments; 5) wages; unpaid require security award interest 6) payments; body to insure future issue attachment and incarcera- comply tion jail for willful failure to with order and for civil contempt up Judge incorporated to six months. Beck would treat enforcement, merged purposes aas but modifiability. alleges authority She for this is found in Court, Code, Section language Decree of 1980Divorce because of broad clearly there. The above discussion delineates the extent of *16 varying under enforcement circumstances. Contracts are be en- to Orders, assumpsit equitable principles, pursu- forced under and court legislative Judge points February ant to authorization. Beck to the Code, section, newly 1988amendment to the Divorce Act added 401.1, authority position. contrary, for her To the it eliminates the engendered by merger incorpo- confusion ration and treats all not, the use terms and agreements, merged incorporated, whether or purposes. as a Order same for enforcement It elimi- modifiability, agreed by parties, property nates rights, alimony unless as to fees, "b) provides: provision A counsel but of an agreement regarding support, custody child visitation be shall subject by upon showing changed to modification the court presented Many problems circumstances.” are this case long legislation, resolved overdue but still there remains to be a pay determination whether incarceration for failure on a contract requirements against imprisonment action meets constitutional debt. Judgment provided by would be 6. enforced as Pa.R.C.P. to 3011 inclusive; Actions, Equity and 3101to 3149 and Pa.R.C.P. Rule 1501et seq. merits relating to property might matters strictly be en- according forced to their non-modifiable, terms and be it is that agreements visitation, inconceivable relating custody should so binding be as to be irreversible when the interest of justice and the best interests of the child require otherwise. The court cannot be bound to enforce- ment of agreements produce inequitable results when conditions change and as the status of parties altered is in relation to each other the passage This, over of time. however, subject to the proviso that property rights and support rights may be so intertwined as not to permit modification as to either. By drawing an so it purports incorporation merger, without the parties may not carve the stone so that it is unalterable while imposing obligation an on the court to enforce Orders which may not be through enforceable contempt and attachment powers.
We, therefore, hold that any agreement which speaks incorporation rejects merger but was intended by the parties not to brought under the provisions of 401, 501(e) (f) sections and 503 for the enforcement of separation agreements. Only by Order which does not merger, or reject requires court enforcement of the agree ment, does it part become of the decree and have effect of an Order. By renouncing merger and failing to have language in the decree requiring enforcement as a court Order, the contract so, survives. In doing parties reject the benefit of the provisions developed under the Divorce Code and the procedures divorce enunciated in the Civil Procedural Rules for contempt, attachment and payment alimony do, however, divorce. They avoid the law relat ing recision of need, arrears or modification based on whether there be a need for an increase in the support Order or a modification downward as the circumstances would require. Notwithstanding, visitation and custody *17 matters will be enforced according to the best interests of the child Orders, and as with support advisory effect will be the given agreement to but without binding effect on the 494 it is in the when best interest of the child. toAs distribution, the
equitable agreements will enforced ac- be to cording long their terms so as equity permit. law and 3, supra. See footnote
Therefore, parties should the desire have the agreement only contract, as binding inflexible a merger However, is not the proper procedure. such contracts and in in agreements, assumpsit, addition actions are still by specific enforceable in equity performance although they do not have the remedies available for enforcement of (without Orders. The advantage incorporation agreement is to merger) give the of res finality judicata. For us to hold that the fiction of incorporation without merger provides statutory enforcement of the contract would on the a impose courts burden which they court, cannot sustain. A like Order, decree other is any rules subject statutory may which be totally inconsistent with the intent of parties a contractual undertaking. court, is, effect, By having an Order of dictated by agreement the parties, they abrogate between the statu- tory rules such A full governing analysis decrees. of this is Johnston, matter stated in Md. Johnston v. 465 (1983). There, A.2d quoting Supreme Court of Bruce, Arizona 90 Ariz. P.2d McNelis v. (1961) (en banc), the Johnston court said:
It is rule mere approval a settlement property part the divorce decree does not to make it a operate If enforceable as decree. language part shows an intent to make it of the divorce and the agreement actually decree is in the incorporated decree, provisions of the agreement may be enforced as an order of the court. property As soon settle- incorporated decree, ment is into superseded by obligations the decree and are not those imposed imposed by contract are those but imposed by merged the decree since the contract is in the (Citations omitted.) decree. *18 53-55, 297 Md.
Id. at 465 A.2d at language 439. The of the agreement in McNelis was similar to that of the one in Johnston and the one in the present case. That language stated: agreement
This shall be offered evidence in such action and if acceptable to the court incorporated shall be by in any reference decree that may granted herein. such Notwithstanding incorporation, agreement shall not be in the merged decree but shall the same survive and shall be and binding conclusive upon parties the all time.
As to the intent of the parties, one of two intents may be derived from the language First, of the agreement. is agreement that the is approved court so the terms become res judicata attack, not subject collateral but or, second, do not merge; they merge and part become and, therefore, court Order as any enforceable other cases, court Order. In the instant fact the speaks specifically about not merging the decree would indicate parties intended that the court approve the contract to establish its validity only part and it not be the decree for enforcement purposes. For purposes of this case, and adopting the analysis the Johnston and McNel cases, incorporation provision with the for non-merger simply establishes validity being res judicata and for enforcement as a contract and not as an Order of pursuant to the decree. provisions enforcement of the Divorce Code and the law, therefore, do not and the apply agreement may arrearages be modified or remitted. Had the language
required alone, incorporation logical inference would be the parties intended merger and the laws of alimony Orders apply. reasons, would For the above trial court properly dismissed the petition for reduction and remission as he had no authority to alter a valid entered into parties. Therefore, the Order at No. 01423 Philadelphia, 1986 is affirmed.
E. CONTEMPT PARAMETERS ON AGREEMENTS This us to leaves the resolution of appeal at No. 01343 Philadelphia, court, which the trial under Order May dated found defendant contempt ordered payment $10,000 forthwith or commitment to jail for 90 days.
There question is no this is an appealable Order as a final contempt Order was entered after hearing in compliance *19 with Crislip, supra. appellant The contends the court in holding below erred him in contempt ignored because it a valid defense of to inability pay and that incarceration is not an appropriate sanction for failure to comply with a support agreement. issue,
As to the first
a thorough
of
review the
record and
testimony
parties
the
leads us to conclude the
evidence, presented by appellee as to appellant’s ability to
pay and that of the
appellant
defense,
his
will not support
the contempt finding. There is no
contempt
refusing to
obey
contemnor,
Order when the alleged
fault,
without
is
unable to comply with it.
Grubb,
Grubb v.
326 Pa.Super.
218,
(1984).
497
Id.
Process Clause because it would undercut the State’s burden to
imposed
guilt beyond
conceded as much at the
added).
alleged
If
applied in
U.S.
comply
401,
364-365
persuasion
state court
it
contempt proceeding
find a defendant in
determined whether this was
from
Hicks
it was
definite in
16 L.Ed.2d
1548[,
Hicks
(1988)
United States v.
Stove and
9.
M. & O.R.
S.Ct. 492
The United States
(1924).
affirmative act
498].
reasonable
fine that
including
not
tions that
defendant
lead
was
ment
court’s
The character
imprisonment,
a few
unless
applied
constitutionally
—
73 L.Ed.
684,
411,
jail upon compliance.
Our
complainant,
be
criminal,
U.S. at
1552]
v.
(footnote
presumed
up
proper
for definite
contemnor is unable to
with the court’s order to make the
If
straightforward
[49
Feiock,
in a civil
imposed
and until he
order,
Feiock,
701-702
92 L.Ed.
in a civil
precedents
Range
to the
a criminal
the relief
here,
a
[at
would
term
S.Ct.
Co.,
(1983);
doubt.
the Constitution
can avoid
a
—,
499];
an
classification of
’
reasonable doubt.
Rylander,
and is
627,
if
omitted).
—
fundamental
266 U.S.
§ 1209.5
requirement
Co.,
and was
it is
he
the United States
173, 174-175,
element of the
required by
108 S.Ct. at
[95
be
From trial court it is evident At the outset appellant’s testimony. no credence to contempt, the trial court appellant after hearing, finding on a impose previ- to sanctions based appeared predisposed go to properly agreed He finding Judge ous Stefan. interpose to to testimony permit appellant forward with the trial court inability pay, appears to It defense of from substantially changed if had not assumed that income time of the the time of the maintains Appellant no defense. hearing, there could be perform income to adequate there was never reduced unilaterally payment, the reason he which was month after per approximately from May $800 $400 the fact his at the level. Thus payment six months $800 changed, and some substantially income level had not beginning at improving extent to be at appeared family-medicine of a liquidation rate due to moderate practice, a psychiatric concentration on practice greater court, pay Order according inability $800 to the present- From the evidence week was established. per *21 case, of allowing puffing in for business ed even (not fees, of unreported expenses possibility proven) and the a reasonable doubt that beyond fails to establish the record in full is in willful can the Order and appellant pay the Barrett, contempt with the Order. See non-compliance 499 Durant, supra;8 Durant v. 339 489 Pa.Super. A.2d (1985); 266 Commonwealth ex rel. Heimbrook v. Heim brook, Pa.Super. 300, (1982) (in A.2d imposing a upon finding coercive sentence contempt, civil the court must be convinced beyond a that reasonable doubt the himself). contemnor has the to ability purge posture The procedural these cases tended to force the conclusion the was in appellant willful non-compliance. At outset, above, the as indicated the first proceeding tested validity (No. 02259 Philadelphia, 1985), when in fact appellant wished to contest his to ability pay. Once the valid, was held to change with no circumstances, subsequent hearing focused on the lack of change to finding contempt for non-pay- ment, evidence, limited held there to ability was pay (No. 1985). 03025 Philadelphia, The present proceeding (No. 1986), Philadelphia, buttressed the two earlier hearings, resulted a determination the evidence as to though substantial, inability, was not credible and resulted in a finding of willful non-compliance with the earlier con- tempt Throughout, appellant maintained, Order. has conviction, established with some his inability pay agreed. amount to which he party may agree While a contract, conditions in actuality he is unable to perform, this does not invalidate the contract. He may, however, have a valid defense to a contempt action for This non-payment. to be appears the case here. This agreement, husband, as to the uncounselled, which is possibly the of the problem, root although binding because he had the to obtain opportunity counsel. requires entered into the appellant to: hold, where, however, here,
8. We now
the court
in civil
proceedings
noncompliance
finds there has been willful
with its
constituting contempt
earlier
orders
but
the contemnor
presents
present
inability
comply
up
evidence
his
and make
arrears,
court,
imposing
imprisonment
coercive
for civil
contempt,
purging
should set conditions
effecting
imprisonment
release from
with which it is convinced
doubt,
beyond a
totality
reasonable
from the
of the evidence before
it,
ability
present
comply.
the contemnor has the
263-64,
Barrett
2. week two $800 school; graduation high until oldest child’s from re- $400; duces to youngest
3. to wife shall terminate when the payment begins post-high child a course of school education or school; high from graduation a employment earnings 4. shall not be basis for wife’s under the payment modification and/or reduction agreement; dependents he claim children as no defaults;
5. can if payment is for of tuition and appellant responsible 6. college expenses; for responsible yearly campership
7. for appellant $3,000 each; approximately each child at cost of from sale of residence. proceeds 8. wife to receive net his de- presented by appellant The evidence establish comply agreement may fense as to with inability Decem- through summarized as In November 1983 follows. which, appellant practice according had a family ber books, per a of 269 patient high patients to his visit serviced per month a of 110 month when it was terminated as to low failing private psychiatric practice His aver- business. 1983 and
aged patients per month between November prior 1986. in the months to the hear- February Only two increase; in March it ing there a substantial was was 32, and in it 44. Dr. Sonder testified time would April, was His patients per more than 44 month. busi- permit never expenses employ- ness deductions included standard such salaries, rent, utilities, insurance, parking, ee automobile rental, drug expenses. Allowing expenses and lab these gross year income for the first against (11/83-11/84) including the from salary Bryn received ($2,166 month), gross the total income Hospital per Mawr $112,262 (this figure is different than period for that used; as different months by appellant testified were are drawn from figures appellant’s recapitulation submitted record). during on the The business expenses period $65,570. totalled Other business related expenses totalled $6,086 $71,656. Taking combined total appellant’s value, income, figures gross considering at face without living expenses, taxes and available to pay support was *23 $40,606 during agreement. the the year following During (11/83-11/84), period $32,400 that he paid toward support $4,000 $36,600. and the camperships, toward or agree- $41,600 ment called for payment $6,000 of and in camper- $47,600. ship expenses,
Taking the presented evidence by appellant the for the period gave he up family practice when the and focused on psychiatric practice, the limited, while the data is by projec- ting figures those for coming the the year, anticipated income would be: contract with Northeastern Hospital, $2,640/month; Mawr, Bryn $2,166/month; psychiatric prac- (average tice 30 patients per month per equals at visit $75 $2,250/month, $7,056/month totals or $84,672/year. Appel- lant’s projection given $72,150 own testimony was per year. expenses Business were less he considerably had no employees and, and reduced rent to according appellant, projected for year to following $22,604. approximately gross His income before taxes and without consideration of living expenses $49,556. would be Taxes would further $17,567 reduce this by $32,000, amount according to appellant’s figures. higher With our income, of estimate net, taxes, $44,000. Thus, after still not would exceed despite reducing expense his business up giving family practice obtaining while second contractual posi- tion with Northeastern Hospital focusing and increasing the psychiatric practice, appellant produce still will substan- tially less income than needed to fulfill his obligation of $47,600 under agreement.
Appellee hints or alleges that living together while and books, while she handled the there was an unspecified amount in cash paid through the family practice that did not appear on the books. did Appellant acknowledge he re- get that did not per week
tained amounts $100 $250 purposes for income tax reported but which were deposited, To patient for in his visit books. are accounted and which living the standard of maintaining account alleges he received appellant agreement sought replicate, month), $10,000, ($1,500 including one per frequent gifts $51,000 to father, as a loan of as well appellee’s from him, family According family practice. establish separa- of default. After verge on the constantly himself and to sustain tion, testified he was able appellant ($7,000 loans from friends paid the amount $8,000 Azar), Zois; liquidation from Janet from Dr. furnishings and equipment of its and sale family practice he position, In further into debt. going he filed for bank- testimony evidence presented $112,000 in debts for claiming in December ruptcy personal expenses. business and income expenses items Unquestionably, various *24 of from a close examination appears it disputed but may be figures or an appellant’s from record that whether from expenses income and of the independent calculation record, was appellant on the presented undisputed evidence $47,600 presently is yearly and paying of incapable and is on the $10,000 the arrears of toward incapable paying agreement. Hopkinson, on Hopkinson
The trial court relied
(1984)
authority
to
404,
A.2d 981
Pa.Super.
for
under
non-payment
for
a
sentence
impose jail
applicable.
not to be
hold
agreement.
Hopkinson
We
to
ability
had the
appellant
There, it was determined
failed to
pay
but
of the
part
at least some
pay
ability.
to his
Here,
according
paid
appellant
anything.
is a correct
that Hopkinson
serious doubts
also have
We
There,
imposed
court
a
the trial
statement
law.
incarceration,
to the Divorce
pursuant
sentence of weekend
This
merged agreement.
Code, in
to be
appeared
what
as the
applicable
merger concept
held the
Court
1978,
to the
prior
in February,
entered
had been
effective date of the Divorce Code. The
then
court
af
firmed the
on
grounds,
trial court
other
it
holding was a
proper
judicial
exercise of
power
enforce compliance with
its
if
purpose
Orders
its
compel performance and not
punishment.
to inflict
In support of this proposition, the
Hopkinson
cases,
Court cites numerous
none which
of
has
imposition
to do with
of incarceration for failure
on
pay
support agreement after a contempt finding. Our exhaus
tive research discloses no Pennsylvania case, aside from
Hopkinson,
permits
for
incarceration
of
non-payment
(It
support pursuant
agreement.
an
is treated as an
although
decree;
a consent
see
p. 506.)
infra
The
pronouncement
last definitive
regard
was Col
Colburn, 279
(1924). There,
burn v.
Pa.
ment. end, con- liberally of that it should be in furtherance strued.’ 250-251, Appeal, A. at 775-76. Pierce’s
Id., Pa. at 123 279 12, the Act of (1883) rely July Pa. 27 and Colburn for debt. 1842, 339, prevents imprisonment P.L. which (J.A.R. Repealer Act Judiciary Act repealed by While Code, by part in 1978 as of the Judicial A.), it was reenacted 10(59). 28, 202, As reen- P.L. No. 53 April Act of § acted, provides: Pa.C.S.A. § for debt Imprisonment 5108.
§ debtor, of a (a) person restriction. —The Constitutional fraud, shall not strong presumption there is where his estate for prison delivering up after continued be in such manner as shall be of his creditors the benefit law.[9] provided prescribed of the Penn- a restatement language simply The above Constitution, I, provides: Article sylvania § debtors 16. Insolvent § debtor, strong is not where there person
The fraud, prison continued in shall not be presumption of for the benefit of his up his estate delivering after prescribed by as shall law. in such manner creditors has had at least two Supreme Court Pennsylvania times, occasions, which it could have upon in more recent legislative the constitutional construed Colburn to do so. declined Silvestri differently, enactments but (1966), 498, 503-04, 224 A.2d Slatowski, 423 Pa. stated: Eagen Justice has ruled previously that this Court passing
We note type not issue in this may of the person that attachment Colburn). us to reconsid- ask (citing Appellants of case: posture present This refuse to do on the er we Colburn. record. judg- 5108(b) civil arrest after and Pa.R.C.P. abolish Section 9. ment.
505
In Commonwealth ex rel. Magaziner Magaziner,
(1977),
Pa.
Assuming arguendo
Magaziner
that Mr.
the
violated
agreement,
terms of
contempt process
the
County Court is
not
to
surely
proper
the
vehicle
redress
the
violation of
contract. The appropriate legal reme-
dy would be an action of
assumpsit
replevin or perhaps
even a bill in
equity
specific performance.
then,
Even
if
won,
Mrs. Magaziner
grave doubt would exist as to
order,
whether any judgment,
or decree could be enforced
by an attachment of
person
of the defendant. See
Colburn,
(1924)
Colburn v.
279 Pa.
Id.,
6-10,
kinson, to the us contrary, requires to find if that even ruling by the trial court was as to appellant’s correct ability pay, it could not be enforced attachment person appellant.10 court, As an appellate intermediate Wieand, Judge 10. Concurring Dissenting Opinion, in his would Hopkinson jailing pay overrule as there a cannot be for failure to Judge majority, debt or breach of contract. Beck would hold that the incarceration, finding that a is not enforceable ignores incorporation brings play into the decree into all powers agreement. Judge of the court to enforce the would Wieand modifiable, find but since the and, therefore, incorporated, it becomes court Order father can Thereafter, contempt powers. incarcerated under the the Order (modified). Beck, Judge can be increased or decreased other policy are not to alter a based on constitution- permitted we interpreted by Supreme al and Court. statutory law Hopkinson, as a imposition as to the of incarceration sanc- *27 tion, is, therefore, specifically overruled. Dissenting Opinion, Judge Concurring
In his and Cava- Hopkinson proper us retain as a state- naugh would have in agree procedure of the We that ment law. would Hopkinson and it imposed, was correct until sanctions were of those sanctions must be over- imposition is the which Hopkinson although agree- was an ruled. We note decree, part made of a consent subsequently ment that was merger by under the doctrine enunciated it does not come recognized of 1980. This was when this the Divorce Code improperly relied on the Divorce Court held the below it enforce the decree as a court Order. empower to to Code of enforcement of a decree Prior to the Divorce Code to an separation agreement pursuant a was containing specif- of or for payment money equity action for assumpsit brought The of 1980 into ic Divorce Code performance. statutory accorded to extraordinary powers all of the play of and payment duties for enforcement imposed in the court to power as the concomitant alimony, as well in mitigate arrears. The Divorce Code modify Orders specifically provides: section 103 in not to case apply any of this act shall provision to the effective prior a decree has rendered been marital any This act shall not affect date of the act. date of this act prior executed to the effective thereto. amendments or modifications any Hall, 495 Pa. Brown v. (1981), 859 435 A.2d While dicta, merger agree- acknowledged possibility Buswell, Buswell v. 377 Pa. ments into decrees based hand, incorporated can be enforced find the would incarceration, The two but that it cannot be modified. Judge adopting produce. point either would views out the dilemma incorporation permit modification and incarceration. uses to Wieand incorporation permit modifi- Judge incarceration but not Beck uses concept violence to the basic of contract which cation. Both views do court) (by nonmodifiability and nonincarceration for failure to pay a debt. A.2d (1954), merger Buswell discussed context of an of enforcement Illinois decree according Illinois law. It did not enforce the merger provision of that permitted specific decree performance but of non-monetary aspects prior agreement. Also, oral the doctrine merger apply very specific provisions did statutory Code, support and Prior to the alimony. our courts permitted merger agreements in consent Orders under the support alimony laws for pendente lite and alimony and bed and board insanity Since, divorce prior cases. had no post-divorce we alimony and the law did permit divorce, orders for spousal support after whether an merged not, decree for absolute divorce or through enforcement was obtained assumpsit and equity a judgment actions not as enforced court. held Hopkinson correctly that the consent decree en- *28 in an Order, forceable as but equity since it was an Order for payment money of was it not covered by laws, it improperly provided for incarceration as a sanction. exceptions
Two existed under the Code of Divorce 1929 (as in 1953). amended is a for first decree Bed and Divorce, Board 23 11 (repealed), provided P.S. which at § section 47 for alimony such as the court determined husband’s admit of, circumstances would not to exceed of one-third his income. The also specifically provid- Code ed: Alimony 47 Divorce From Bed and Board
§ Attachment; imprisonment discharge. or courts —The enforce their may attachment, decrees by return they which make such may imprison Order either or discharge may defendants as the facts of the case justify. Orders, course,
23 47. P.S. These could be modified § accept agreements the courts would stipulations or regard such accepted court, decrees. Once by they sense, “merged”. were every they considered mainte- 508
nance and support opposed Orders as to the general concept Strickler, Strickler v. of alimony. Pa.Super. (1939). provision A.2d 69 The second for post-divorce alimo- ny under the earlier Code the respondent was when was insane, 23 P.S. Permanent Where Alimony Respondent § However, provision Insane. no was made for enforcement imprisonment. defect, attachment or This is not a at any least after form of alimony court-directed or lite, alimony pendente pursuant was enforceable to the Civil Law, 13, 1953, Procedural Act of Support July P.L. seq., et 2043.31, provided P.S. enforcement §§ order, decree or “any judgment, whether interlocu- final, incidental tory whether to a proceeding di- vorce____or otherwise.” Attachment and incarceration statute, permitted by were as these Orders were derived public policy from and not out of contract. lite,
Agreements alimony pendente for if approved by the court, resulting subject an Order were to this enforce Agreements approved ment. court but entered of record were not. Such had no judicial Law See sanction and incapable judicial compulsion. Marriage Pennsylvania, and Divorce in Freedman, 2nd III, Edition, however, 457. Agreements, Vol. whether § incorporated decrees, consent decrees or into divorce post-divorce payments (A after absolute divorce Vinculo matrimonii) stature, were not accorded this as is succinctly supra. Freedman, stated in *29 662. and Alimony Property Agreements
§ there Pennsylvania statutory is no authoriz- provision ing the court to include as of part agree- the decree the parties ment of the for the of their adjustment property for rights payment post-divorce of support. states, absence of this authority, common in other has caused considerable domiciliar- difficulty Pennsylvania 1942____ ies since the passage the Revenue Act of broadened but (Revenue Act) The statute has been now legislation is still desirable in Pennsylvania to autho- rize the inclusion property agreements settlement the divorce decree. added.) (Emphasis until
Not 1980 did the legislature heed this call legislation and enact permits merger separa which now of a tion/property settlement into a decree. divorce The Hopkinson agreement, decree, while termed a consent and, preceded legislation therefore, does not receive “merged accorded to agreements” benefit present under law. Thus enforcement pursuant cannot be to attachment person, permitted of the as by merged properly agreements, under current law or those limited areas discussed above It, therefore, under law. earlier is governed by contract law; “debt”, breach creates a debts not be may by enforced under the jailing Pennsylvania statutes, Constitution and supra. By ignoring Hopkinson, Cavanaugh dissent do, would have us we permit confusing and erroneous remain, statement of law to will return time and again appeal time producing wasteful and unnecessary litigation. Thus the enforcement for provisions failure to comply agreement, merged with an into support Order decree, or divorce are those available other any civil action, at or in for equity payment law of money judg — ments and execution or property. attachment of It is likely for this reason that the legislature provisions has enacted the Divorce Code and support permitting agreements law be merged into support super Orders which the agreement sede as these can be enforced attachment person and attachment of As wages. an instrument public policy, Orders of a legal duty create not a undertaking; contractual willful failure to pay be comes a contract; violation law and not breach arrear ages legal court, become a obligation enforced not a debt enforced through private litigation. It also means, however, such and, Order controlled by the court law, modified, subject terminated, to the may suspended be or reinstated as arrearages may conditions warrant and remitted. *30 Dissenting Opinion, Judge and Concurring in the
Finally, the nature has misconstrued Cavanaugh majority states He goes or child. spouse to agreement state: equated not a child should An to the reme- respect a commercial with with con- A commercial of such a contract. dies for breach the default- subject does not ordinary tract or to confinement. ing obligor J., 518.)
(Concurring Cavanaugh, p. and Dissenting Opinion, found properly the court below go on to find that He would contempt imposed and Order in willful appellant bring compliance.11 about incarceration sentiments, in our nothing these are admirable While law Pennsylvania supports special research of the law settlement applies separation/property as it of contract of the contrary, to the the forerunner Quite agreements. of 1980 the Joint State Government Code was Divorce Divorce Code Proposed June Report, Commission (JSGC). (Separation Agreement) Section Pennsylvania to court consideration approach forth a detailed clearly set which, if adopted separation agreements, approval and presented are full, problem eliminated the we would have some of those Indeed, appear it here. would with legislature, adopted into crept have provisions, majority dissent, page 11. At author is noted that the 516 of the it approval, in extensively Hopkinson, with quotes from Schoffstall (1987), he also Pa.Super. A.2d 567 which Schoffstall, 364 Quoting Hopkinson, context of a from in the authored. order, totally appropriate as the section proceeding alimony on an result and statement of law. It quoted was and is a correct law, jailing for the constitution and application of that in the face of debt, although proper Hopkinson, is erroneous in civil Alimony may be enforced attachment orders Schoffstall. incarceration detailed in the stated, Code, previously as under the Divorce Code, prior pursuant majority Opinion, under the even Hopkinson decree did not consent to statute in limited cases. permit- statutory authority acquire Order that had the statutes of an agreement. does as an ting be enforced other than it to Schoffstall as, here, dealing agreement, with an we are not control in case there, enforcing is distin- a court Order. the court was Schoffstall respect. in that guishable Hopkinson and the case before us from Form Montgomery County 2 Decree. It is relevant *31 however, illuminating, of detail statements the commis- agreements sioners in relation to how should be treated law. Agreements] 306 [Separation
§ Note Commissioner’s important An of aspect the effort to reduce the adver- sary trappings of marital dissolution is attempt, made 306, by Section encourage parties to reach an disposition of the amicable financial and other of incidents marriage. their This section entirely reverses the older view agreements settlement property are against public policy they promote because tend to divorce. Rath- er, a marriage when has broken down irretrievably, pub- policy lic will allowing parties be served by to plan their future by agreeing upon disposition of their prop- maintenance, erty, their and and support, custody, visitation of their children. (b)
Subsection
undergirds the freedom
par-
allowed the
ties by making
clear that
the terms
respecting maintenance and property disposition are bind-
ing
upon
court unless those terms are found to be
unconscionable. The
standard
is
unconscionability
law,
used in commercial
its meaning
where
pro-
includes
against one-sidedness,
tection
oppression, or unfair sur-
(see
2-302,
prise
section
Code),
Uniform Commercial
law,
U.S.,
(79)
contract
12
([
U.S.)
Scott v.
Wall
443
]
(1870) (“contract
L.Ed.2d
...unreasonable
[20
438]
fraud”);
unconscionable
not
but
void for
v.
Stiefler
McCullough,
(1931);
174
Ind.App.
N.E.
97
123
Terre
Branscome,
Haute
Cooperage v.
So.2d
203 Miss.
(1948);
Co.,
Carter
Trust
County
Boone
(1936).
S.W.2d
dard unknown to the law. negotia- In the context of spouses tions between as to the incidents financial their marriage, standard includes protection assets, concealment against overreaching, and sharp dealing not consistent with the obligations marital to deal with each partners fairly other. order to determine whether the is uncon-
scionable, the court look may to the economic circum- parties resulting agreement, stances of the from the other any relevant evidence such as the conditions under made, including knowledge other If the court finds the party. agreement not uncon- scionable, its terms respecting property division and main- may tenance altered the court hearing. at the *32 added.) (Emphasis
If the
must deal
parties
reaching
with each other in
an
agreement according to the established
law
contracts
law,
commissioners,
under commercial
as indicated
by
standard,
the court cannot
a different
employ
which would
ephemeral
personal
and
to each
judge
enforcing
be
those
agreements. To deviate from
contract
established
law
any respect, except
legislature
spoken
where the
has clearly
(and it has in
ways),
numerous
is to invite confusion and
It is not the
uncertainty.
prerogative
an intermediate
appellate court to
such a far
and
pronounce
reaching
unpre-
in one of the
principle
dictable
law
most volatile areas of
legal
personal relationships
our society.
summation,
separation
we hold
or property settlement
agreements
support
for
remain as contracts
enforced
to be
merged
at law or
unless
are
into a
equity
they
divorce
Upon merger,
decree or court Order.
are
they
superseded
contracts
as
and take
all of the
attributes
Orders for
of modification and
purposes
enforcement. This
agreements
is so whether
be
for
or
they
spousal support
support.
possible
agreements
child
It is also
to have
standing apart
Orders
and enforced separately.
Hall,
Madnick,
Brown
supra;
See
Madnick v.
130,
(1985);
The appeal Philadelphia, at No. 02259 1985 is appeal at No. 03025 Philadelphia, quashed. 1985 is At No. appeal Philadelphia, Order of dismissal affirmed; appeal Philadelphia, at No. 01343 the Order of attachment is vacated and the case remanded for further proceedings to determine remedies available to enforce the agreement in accordance appellant’s ability pay with consistent Opinion. with this *33 relinquished.
Jurisdiction CAVANAUGH, and Concurring dissenting opinion by J. WIEAND, J., and
Concurring dissenting opinion by ROWLEY, joined by J. BECK,
Concurring dissenting opinion by and J. CAVANAUGH, Judge, concurring dissenting: and I part dissent from that of the entitled majority opinion ” E. Contempt Agreement “Section Parameters on against reversed the order of entered the contempt appel- and the order of attachment at No. Appeal lant vacated 1986. I affirm the order of Philadelphia, would failure to contempt appellant’s comply based on willful directing order that he out the terms carry with Court’s agreement voluntarily of the he entered. Montgom- Three of the Court of Common Pleas of judges gave separate appellant’s consideration to the ery County in refusing comply proper- conduct to with terms Sonder, ty settlement entered between Dr. Carl R. wife, Sonder, and his Suzanne C. appellant, November 29,1983. agreement simple was and understandable language participated analyzing, and Dr. Sonder actively correcting rewriting agreement under which he was Subers, pay per to his wife week. J. determined $800.00 binding to be valid and and that the contract for itself. Dr. Sonder with the spoke initially complied Subers, pointed slip terms of the contract. As out J. 1986: opinion, page opinion January to imagination “It stretches the of this Court believe that Dr. of the contents of this Sonder was aware that he or that the P.S.A. would not consti- signed P.S.A. binding agreement.” tute a An Dr. directing order was entered the court below $28,000.00 Sonder the sum of pay Sonder Suzanne (A) of the settlment pursuant paragraph Stefan, below, fee of the court hearing. counsel after a J. 4, 1986, opinion February dated held that the issue concerning appellant’s ability one of credibility The court heard comply agreement. testimony with concerning appellant’s practice. income from his medical testimony concerning It found his wife’s his income was and that the was not. The court con- appellant’s credible did not to meet his appellant simply cluded the choose obligations property under the settlement the order of properly that he was found directing compliance March March with the settle- ment agreement.
A civil proceeding Salus, was held before J. on 12, May again 1986 and extensive testimony was taken concerning the appellant’s ability comply with the sup- agreement. port The court found that Dr. Sonder had the present ability pay the full amount of support agree- By ment.1 an adjudication Salus, J. dated July the court affirmed its order directing appellant to make payment on arrearages or be committed to the county prison on weekends until purging himself of contempt. below,
The court
in my opinion, properly relied on Hop-
kinson v. Hopkinson,
The majority opinion
page
at
503 specifically overrules
Hopkinson v.
I
Hopkinson.2
find no basis for overruling
interesting
1. It is
to note that while Dr. Sonder now contends he is
completely
pay
per
unable
$800.00
week for
of his wife and
children,
two
April
he wrote to Mrs. Sonder on
1986 and offered to
pay
per
total of $600.00
week for
of his wife and two
children.
majority opinion
page
2. at
stated:
*35
Hopkinson, and note that
Schoffstall,
v.
364
Schoffstall
appeal denied Schoff-
141,
Pa.Super.
(1987)
The majority states that
if
even
the trial court’s ruling
was correct concerning the appellant’s ability to
pay
ordered,
amount of support
it would
powerless
to en-
force its order by holding
appellant
contempt
court.
It
ex
Commonwealth
rel. Magaziner Magaziner,
v.
relies on
1,
434
(1977)
Pa.
The court pointed out at 434 Pa.
In the case instant there is no order of which the is upon predicated. (Empha- order added) sis Court Supreme
What stated about the quoted length parties, by majority at at dictum, 495 as page simply as the case nothing had to do visitation of support with a order. issue was the only procedure improper imprison followed in an endeavor to for to husband failure allow his to take her belongings wife out his house.
I not a agree do reading Commonwealth ex rel. to Magaziner Magaziner, supra, should lead us conclude if that even the appellant wilfully carry failed to out the requiring order the court him pay support, that it was Further, him in powerless contempt. hold civil Hopkin- Hopkinson, son v. does not supra, appear to me to be in conflict with Commonwealth rel. Magaziner ex v. Maga- ziner, so must that we overrule expressly Hopkinson v. as the do. Hopkinson, majority would I Finally, believe that the has majority misconstrued the nature spouse or child. The majority states page at 509: provisions
Thus the enforcement failure comply an agreement, with into merged order or decree, those divorce are available other any civil *37 action, at in equity law or for payment money judg-— ments and execution or attachment of property. An support spouse to a or child should not be equated with a commercial agreement respect with to the for remedies breach such a contract. of a Breach com- mercial contract or ordinary agreement subject does not defaulting obligor to confinement. Breach of a contract to purchase loan, an automobile or to repay failure a bank barring relevant, fraud or other some factor not here will imposition result of the serious sanctions that should result in failure to one support upon whom law a imposes to where the court duty has entered an requiring order I with support. agree the court below that wilfully comply appropri- has failed with appellant contempt. held in As we stated properly ate order Pa.Super. v. Schoffstall, Schoffstall relying Hopkinson Hopkinson, supra: A.2d 567 to enforce may contempt power “A court exercise its civil if purpose its orders or decrees its with compliance inflict punishment.” and not to compel performance E majority opinion I dissent from Part Accordingly, No. vacating Appeal of the order of attachment at I in the result as to Philadelphia, only 1986. concur of the opinion. the remainder
WIEAND, concurring dissenting: Judge, 29, 1983, estranged Carl Sonder and his On November Suzanne, wife, property agree- entered into a settlement alia, provided, pay inter that Sonder would ment which minor children the sum of his wife for the two ($800.00) per Paragraph hundred dollars week. sev- eight further as agreement provided enteen of the follows: IN INCORPORATION JUDGMENT SEVENTEENTH: FOR DIVORCE. at time hereaf- any the event either Husband or Wife or hereafter presently
ter obtain a divorce the cause them, Agreement and all of its pending between shall into such provisions incorporated any judgment divorce, Agree- for either reference. This directly ment, decree, upon incorporation, merge shall not into the remain in full force and effect. The court on but shall right shall retain the entry judgment divorce Agreement. and terms of the provisions enforce until agreed support payments May, Sonder made the payments he reduced the to four hundred unilaterally when ($400.00) per dollars week. 16, 1984, complaint Suzanne Sonder filed a
On October sup- equity requesting specifically enforcing decree ground on the port agreement. Carl Sonder defended proposed presented had been draft merely *38 “meeting during negotiations represent and did not a final the of minds.” He also contended that the invalid because of duress and undue influence. hear- After ing, decree, 27, trial court entered a 1985, dated March ordered Carl “comply Sonder to with” terms of agreement. Exceptions dismissed, were and Sonder This appealed. appeal was filed to No. 2259 Philadelphia, 1985. later,
Three weeks on April 1985, Suzanne Sonder filed a petition asking the court to hold Carl in Sonder contempt failing pay for the full amount of agreed support as directed by court’s order of March 1985. hearing, After the court found that in appellant was con- tempt and ordered him to of pay arrearages twenty-nine thousand, eight ($29,800.00) dollars, hundred as well as counsel fees and costs of amount one thousand ($1,000.00) order, dollars. An from appeal this Octo- dated ber was filed to No. 3025 Philadelphia, 1985. Meanwhile, 13, 1984, on December final decree of divorce had been following entered which included the lan- guage: agreement] hereby incorporated into this Decree
[the fully Order reference as though same were set forth at Said length. merge shall not with but shall survive Decree and Order. 3, 1986,
On January Suzanne Sonder filed in the equity petition action a second adjudicate Carl Sonder con- tempt for refusing to comply parties’ agreement with ($800.00) paying eight per hundred dollars week for the thereafter, Shortly the children. filed Carl the divorce action a reduce petition to the amount court’s order and arrearages to remit on grounds that his financial changed. circumstances had The trial petition court dismissed Carl’s for jurisdiction. By lack of 13, 1986, order May dated the trial court found Carl Sonder him court and directed the sum of ten pay ($10,000.00) prison thousand dollars or committed to (90) a period ninety days. This order subject was the appeal filed to Philadelphia, No. 1343 1986. An appeal
521 dismissing petition from the order to reduce the decree provisions divorce for want of jurisdiction was filed Philadelphia, to No. 1423 1986.
No. 2259 Philadelphia, 1985 would dismiss the majority appeal at No. 2259 Phila- 1985 delphia, grounds that “the validity agree- ment rendered appellant was moot when insisted the agree- incorporated ment be in the divorce decree.” I believe mootness; majority concept and, misconceives there- fore, I dissent.
“A case is ‘moot’ when a determination is sought on which, rendered, matter when cannot any practical have existing effect on the controversy.” Black’s Dictio- Law (5th McCormick, Leonhart v. 1979), 909 nary citing ed. 395 1073, (W.D.Pa.1975). F.Supp. 1077 “The existence of an actual controversy requisite is an essential to appellate if, jurisdiction, and an an pending appeal, event occurs renders impossible which it for the court to appellate grant relief, the any appeal will be dismissed.” 2 P.L.E. Appeals 313. See: American Mutual Ins. Liability Co. v. Zion § Klein, & 547, 550, 679, (1983) 319 Pa.Super. 466 A.2d 680 K.L.H. v. G.D.H. 318 Pa.Super. cases); 330, (citing 334, 464 1368, ex (1983); A.2d 1371 Commonwealth rel. Watson v. Montone, 541, Pa.Super. (1974). 227 323 A.2d 765 Glinatsis, Macioce v. See also: Pa.Super. 361 522 A.2d Stolker, (1987); Stolker v. 378 A.2d Pa.Super. (1977). case, In the instant the dispute between Sonders regarding their settlement property agreement is not moot. Suzanne Sonder an brought equity action to obtain a decree compelling Carl Sonder to perform agreement sup- his port parties’ children. The husband-appellant unsuc- cessfully attempted to establish that a final support agree- ment did not exist or that the agreement upon relied by his wife was otherwise unenforceable. At the conclusion of proceedings, those the trial court entered a specif- decree of performance. ic Its order is facially valid and one with such, appellant which can be made to As he is comply. entitled to have the decree appellate reviewed can, if the decree is improper, grant relief. Such an therefore, appeal, is not moot.
The fact that the incorporated into the divorce decree does not render moot the issue of the validity of the agreement. In the first place, the husband-appellant also attempted to challenge the validity the divorce action but was not permitted to do so. Then he sought have the merged into the divorce decree so that the amount of the support order could be *40 reviewed court from time to time as circumstances changed. The agreement, as concedes, the majority is subject enforcement separate and apart from the decree of divorce. Guerin, Cf. Guerin v. 296 Pa.Super. 442 (1982) A.2d 1112 (unappealed order reducing support not res judicata as to enforceability private in as- action). sumpsit In neither the equity action nor the di- action, vorce therefore, has the dispute become moot. When the majority suggests that appellant will not be heard to challenge the validity the support agreement because he wanted it to be incorporated into the divorce decree, it talking in terms of estoppel and not mootness. However, the record in this case makes it clear that appel- lant consistently attempted to attack the validity of the support agreement. He has done I nothing that can discern that would estop him from filing an appeal which requires this Court to review the equity decree entered by the trial him requiring perform the same. merits,
On the however, appellant’s contention that the trial court erroneously enforced the agreement must fail. The evidence clearly supports the trial finding court’s appellant, a doctor of psychiatry, was a learned man who understood the terms of the written agreement and exe- cuted the same intending to be bound If he thereby. made a bargain, bad that fact alone does not him permit to avoid agreement. his
A valid for support, moreover, can specifi- cally enforced. See: Slatowski, Silvestri 423 Pa.
523
(1966);
Colburn,
A.2d I Because find no equity error court’s decree of 27, 1985, March ordered appellant his comply with agreement, I affirm would the same.
No. 3025 Philadelphia, 1985 I would also affirm order of the trial court which adjudicated private agreement amount due order, made an award counsel fees. This though even it spoke contempt, terms of was a final determination of owing the amount due and by appellant and thus final to sufficiently permit appellate review.
Although support agreement
a
merged
which has not
in a
court order for support can be specifically
enforced
court of
I
equity,
agree with the majority that under the
present state
the law in Pennsylvania a court cannot
impose a prison sentence for contempt
upon
of court
person who has failed to make support payments required
private
aby
agreement. See:
Colburn,
Colburn v.
supra;
(1883);
Pierce’s
Appeal,
Stull,
Pa. 27
Stull v.
Pa.Super. 255,
(1937)
cases).
This is what the equity court did in the instant case. It made a determination of the amount husband-ap- which the pellant had failed pay pursuant to agree- his ment and directed that the addition, same be In paid.
524 court ordered the husband-appellant to pay counsel fees and costs the amount of one ($1,000.00) thousand dollars. This was a final determination of the amount owed appellant as of the date of the such, court’s order. As it order, capable final supporting entry of judg- ment in favor the wife-appellee against the husband- appellant. cases, general such rule is that the order is not
appealable until it has been reduced to judgment. See: 301(c). Pa.R.App.P. This practice court’s in cases where omitted, however, this has been is to direct the prothono- tary lower court to enter judgment on the docket pro nunc tunc and thereafter to consider the appeal on its merits. That is I what do in would the instant case. I would direct the prothonotary in Montgomery County enter judgment on the trial court’s order and consider the merits of husband’s appeal.
When one examines the merits
however,
of this appeal,
it
is readily apparent that the determination of damages by
the equity court must be affirmed. The evidence was
sufficient to support the equity
findings
court’s
on the issue
of damages; and those findings, therefore, are binding
upon a reviewing court. See: Presbytery Beaver-Butler
United Presbyterian Church v. Middlesex Presbyterian
Church,
255, 266,
507 Pa.
1317,
(1985);
489 A.2d
Commonwealth ex rel.
DiGiacinto,
Gibson v.
66,
497 Pa.
70,
(1981);
439 A.2d
Miller,
In the Interest
Pa.Super.
(1982).
448 A.2d
Appellant contends that the equity court erred
it
when
denied his last-minute request for a continuance. Whether
to grant or
deny
continuance, however,
motion for
is a
matter
court,
within
discretion of the trial
and its
decision will not
appeal
be reversed on
unless there has
been a manifest abuse of discretion. Feingold v. South
eastern Pennsylvania Transportation Authority, 339 Pa.
*42
15, 19,
Super.
(1985),
488 A.2d
aff'd,
512
Pa.
Love v. Harrisburg Coca-Cola Bot
(1986);
No. 1343 Philadelphia, 1986
The order from
appeal
which this
was taken was entered
in the
action in
equity
response to a
petition
second
to hold
husband-appellant
in contempt for refusing to comply
with the decree of specific performance which had been
entered on March
1985. The order found Carl Sonder
“in
agreement” and directed that he be
prison
committed to
for a period
(90)
of ninety
days unless
purged
he
himself by paying the sum of ten thousand
($10,000.00) dollars on account of arrearages which had
accumulated pursuant to the agreement.
order,
This
quite
clearly, was an
attempt
enforce the
private
party’s
agree
by attaching
ment
person
husband-appellant.
I
agree with the majority that under decisions of the Supreme
Court of Pennsylvania the trial court’s order
improper
and must
A
be reversed.
court cannot properly impose a
prison sentence for contempt of
failing
court for
to make
support payments called for by private
agreement. Col
Colburn,
burn v.
supra; Pierce’s Appeal, supra; Stull v.
Stull, supra. See also:
Slatowski,
Silvestri v.
supra; The
panel decision of this
Court Hopkinson v. Hopkinson,
Pa.Super. 404,
(1984),
No. 1423 Philadelphia, 1986 It remains to be decided whether a court which has entered an order for prevent- children can be ed from modifying its order by private the existence of a agreement between mother and father establishing the amount of support which is to be contributed aby parent for his or her children.
526 agreement
When an' for support merges into a court order, longer effect, no has independent the court order is only enforceable. Commonwealth ex rel. Tokach, Pa.Super. 359, (1984). Tokach v. 326 474 41 A.2d support agreement When a is incorporated into does not but order, merge separate however, with a court parties between the survives and can be enforced in an action at or in equity. Hall, law See: Brown v. supra; Guerin, supra. Slatowski, Guerin v. See also: Silvestri v. event, supra. support order has a separate obvious, existence and can also be course, enforced. It is only that there can be one satisfaction. intent, is a
Merger
matter of
to be determined from the
terms of the contract or the conduct of
parties.
391,
McGough McGough,
Pa.Super.
enforced
an action at
or in equity,
law
but it cannot be
by attaching
enforced
A
person
obligor.
court
order,
hand,
on the other
can
so enforced.
be
One who is
of a
contempt
duty
support
established
order
until he
may
imprisoned
purges
himself of contempt by
terms and
complying
imposed
with
conditions
the court.
Barrett,
(1977);
Barrett v.
470 Pa.
See:
Modification of a court order for support is
precluded
not
the
by
existence of a separate support agreement between
parties.
the
Millstein,
Millstein v.
It is also true that a court of law or cannot equity reduce the amount which a parent has separately agreed to pay for the support of a child a private agreement. This neces- sarily follows from the principle that a court will not parties rewrite private their agreement. See: Amo- co Oil 214, Co. v. 505 Snyder, 220-221, Pa. 795, 478 A.2d (1984); Trumpp v. Trumpp, 205, 351 Pa.Super. 209, 601, 505 A.2d (1985); Wickes Corp. v. Newtown Sav- Ass’n, ings 322 Pa.Super. 469 A.2d however,
(1983). can agreement, only Such be enforced by equity. by an action at law or It cannot be enforced attaching person defaulting parent. of a
A
its
order for the
may always modify
support
own
may modify
only upwards,
of a child. It
its order
but
Hall,
Brown
495 Pa. at
supra,
downwards well. See:
(“parties
In the instant action a to reduce the amount of the court petition divorce sought for the of his children. He to have order *45 the court at the same time as the court petition by his heard petition had been wife-appellee’s contempt heard , filed in the action. The trial court heard the con- equity appellant’s petition dismissed to reduce tempt petition but jurisdictional grounds, order. It did so on support giving my judg- reason for its decision. any without ment, possible it would have been for the court to consol- reduction petition idate wife’s for and husband’s at the same time. Because the trial petition and hear both so, husband-appellant’s petition court elected not to do court’s order for child support to reduce the amount of the has not been decided.
Therefore, petition I remand the to reduce the would an and a support evidentiary hearing order of child for as to by appellant’s determination the trial court whether changed in such a manner that he is circumstances have entitled to the court’s order for child reduced. have Summary parties I would hold that the validly incorporated their private agreement into the divorce causing decree without merged their to into Consequent- be the decree. ly, the child support provisions of the agreement survived directing the court order appellant to to contribute provisions his children. The of the parties’ agreement are not subject by modification a court. How- ever, can only enforced an action at equity; or in law it cannot be enforced by attaching appel- order, person. lant’s hand, court the other can be contempt powers court; enforced and, conse- appellant quently, imprisoned can be for a failure to comply therewith. An order so enforceable is subject to being increased decreased by the court after hearing facts, circumstances, justice This, I may require. sub- mit, has always been the of this law Al- Commonwealth. though the can in wife-appellee this case have several remedies, she can only have one satisfaction. these
Applying principles the several appeals now banc, before the court en I would affirm the orders which subject are the of appeal at Nos. 2259 and 3025 Philadel- phia, 1985. I would reverse the order which has been appealed and, No. 1343 Philadelphia, 1986 in No. 1423 1986,1 Philadelphia, would remand appellant’s petition seek- ing reduce the amount the court order further proceedings. J.,
ROWLEY, joins. BECK, Judge, concurring and dissenting: This case raises issues central to our family jurispru- law provides dence and opportunity to eliminate the confusion surrounding these issues which persisted has *46 in our case The years. law crux of the matter a question power of power our courts—their to modify obligations and enforce to relating support, child alimony, divorce, property upon distribution and property settlement separation agreements or incorporated merged and/or into many have Although
divorce decrees. we addressed forms fact arising from as diverse as question, patterns this numerous, my opinion are we not done so they have with or clarity consistency. We degree a sufficient have to either the trial court or the bar provide failed bench with result, guidance. As a our trial courts any true have and failed to a struggled understandably to come consistent to these issues.1 bar has been forced to approach “magic” “incorporate” “merge” like employ words the draft and of divorce decrees agreements they the forms choose, awaiting new that will in- always decisions they to again.2 them their incantations once adjust struct case, an pattern. In the facts fall into all too familiar this story the of a will not fundamentally pay It is husband who he he agreed to has pay the has both which period to attempts ordered and of a wife’s over pay been to him to the facts are as years pay. Specifically, force follows. Sonder, 29, 1983,
On November Suzanne and Carl who married, agree- separated then still executed were but upon disposition their they agreed ment — Pa.Superior companion, Kaskey, This case and Dechter v. Ct. 1. its case, —, (1988) perfect A.2d 588 are In this trial illustrations. sitting Montgomery County judge on the Common Pleas Court for incorporation provided interpreted a that for the divorce decree merger property agreement to mean that the without of a settlement power had no to decrease the amount of child due Dechter, sitting agreement. judge another trial on the under opposite, despite that precisely held the fact same court divorce decree was identical to that case, reduced the child per support due almost week. $100 under the legislature February Effective amended Divorce 2. Through of a confusion. the addition new Code section eliminate this 401.1, below, legislature of which is substance set forth incorporate completely significance of words like has removed relating juris- agreements merge matters within the when used in presiding proceedings under the diction of the court over Divorce modify power the court to enforce such Code. The and/or degree statutory agreements is as a matter of law. The now settled agree- pending cases and which this amendment will affect divorce presented already for decision is not an issue in the ments instant applied executed case, argued party has the amendment should be since no Therefore, retroactively. we this case under the must decide prior the law to the amendment. state of *47 property custody and the and of their minor two agreement children. The provided (“hus- that Dr. Sonder band”) pay would (“wife”) Mrs. Sonder per week $800 support. child It did not provide for any payments spousal nature of support or alimony. provisions Other of particular importance here are as follows: ENFORCEMENT. [Section 11]
(a) It is expressly agreed understood and by be- parties tween the hereto that this Agreement may be specifically enforced by either Husband or in a Wife Equity____ Court of
(b) Notwithstanding anything herein, the contrary or may proceed Husband Wife also with an action at law for any redress of of his or her rights under the terms of Agreement. this
(c) It is specifically understood agreed by par- ties that in the event a default under the terms this Agreement, the non-defaulting party shall have the right to file a for contempt Petition request such relief and remedies as authorized by law. AGREEMENT, ENTIRE MERGER AND
[Section 16] INTEGRATION
Husband and hereby Wife do covenant and warrant that this contains all of the representations, prom- agreements ises and made either of them to the other for purposes set forth in preamble hereinabove; claims, there are no promises or representations not here- contained, written, either oral or may shall or or charged or enforced enforceable unless reduced to writing and signed by both parties hereto; and the term, condition, waiver of any provision clause or of this in no shall way be deemed or considered a term, waiver of any condition, other provision clause or agreement. this IN INCORPORATION
[Section JUDGMENT FOR 17] DIVORCE. or at time hereaf- any either Husband Wife the event hereafter presently in the cause or
ter a divorce obtain them, and all of its Agreement between pending judgment into such incorporated any shall be provisions Agree- This divorce, reference. directly either decree, into the ment, merge *48 shall not upon incorporation, effect. The court on remain in full force and but shall right retain the to for divorce shall entry judgment Agreement. and the terms of the provisions enforce the IN EVENT TO CONTINUE AGREEMENT 18] [Section OF DIVORCE in full force and effect shall remain Agreement
This either mutual written until it is terminated unless and appropriately or to the extent it is parties, consent of both under the terms party the death of either terminated Agreement. of this ... 16, 1984, for On October wife filed divorce. July
On specific per- for equity instituted an action wife paid had agreement, alleging of the husband formance 27,1985, March for several months. On only per week $400 agree- comply with the trial court ordered husband tMo and later to that exceptions denied husband’s ment appeals appeal this order number order. Husband PHL 1985. refuse to the full pay thereafter continued to
Husband Thus, for petition filed a agreed. he had wife to which $800 24, 1985, the court 18, 1985. On April on October contempt order, March found husband $29,000 to almost then amounted pay ordered him to what $1,000 for counsel arrearages and wife’s in child costs, him in future with his comply and ordered fees and appeals this agreement. under the Husband obligations 3025 PHL 1985. appeal order in number 13,1985, by entry were divorced parties December On specifically incorpo- The decree a final decree of divorce. decree, provided in full into the but rated the decree. merge did not with that the January On 1986 wife filed a new petition con- tempt. Husband replied by filing petition to remit the arrearages under reduce his child support obligation thereunder per from week $800 to $400 per week. 13, 1986,
On May in the hearing course of a in this matter, the orally denied husband’s petition to remit arrearages and modify agreement. Husband appeals in appeal this order number 1423 PHL 1986.
In the course of the same hearing, the court again found in contempt husband $10,000 ordered him either to pay the then against outstanding arrearages $41,000 of almost or be incarcerated. After several unsuccessful attempts by husband to stay the court’s 13th May order of contempt, 21,1986, May the trial court entered a written order adjudg- ing husband to in contempt ordering him to pay $10,000 forthwith to be incarcerated every weekend until purged he $10,000. himself his contempt by paying the *49 Husband appeals contempt adjudication in appeal num- 1343 PHL ber 1986.
All of the foregoing appeals have been consolidated be- fore this court.
The first two of husband’s appeals may be summarily disposed of. Appeal number which is taken from the declaring order agreement the be to enforceable and order- ing husband to has been comply, rendered moot by hus- later implicit recognition band’s of the binding and enforce- able nature of agreement. the It was husband who took pains ensure that the divorce provide decree would the incorporation of agreement the into the In decree. so, doing husband implicitly conceded that the agreement is and Moreover, valid enforceable. husband has not appealed itself, from the divorce decree into which the Thus, incorporated. was the appeal from the trial court’s determination that the is an enforceable contract is moot and should be dismissed.
Appeal number 3025 is from the court’s first order ad- judging husband in contempt. be This order is clearly
534 in con- adjudging in that order someone interlocutory final. tempt sanction therefor not imposing any without is Chubb, (1985); 493 84 Pa.Super. v. A.2d McManus (1981). Pa.Super. A.2d Bagnato, Hester not appealed The order from this did contempt appeal him in merely on husband. It declared impose sanctions comply obligations ordered him to with his and imprisonment fine or or- agreement. under his No Thus, is and must interlocutory appeal dered. the order quashed. appeals, The raise issues of central remaining (a) not so are: importance, easily are resolved. issues is incor- settlement/separation property where decree, court merged not into a does the porated but divorce (b) does the modify agreement; power have incarceration, including contempt powers, court have non-compliance in the face of powers other enforcement view, these are inex- my issues agreement. with of the tricably They concern the effect intertwined. both of a settlement incorporation merger property without above, this is As stated agreement into a divorce decree. question power of the vis-a-vis fundamentally obligations agreement. set forth in the —Modifiability— perfectly case Although existing subject on this law clear, highly salutary proposition one my view basic large our case has made emerge. degree, does To a law modifiability on the question dependent resolution of the most agreement. parties intent Even this common cursory applicable cases reveals review *50 thread. (1981), Hall, 435 A.2d the Pa. Brown agreement
Supreme
asked to decide whether an
Court was
entry
after
of one
support,
for child
executed
providing
support
support order,
subsequently
survived a
entered
its
The court concentrated
order for a lower amount.
ascertaining
of
The
parties.
on
the intent
the
analysis
the
in a
review of
terms
engaged
lengthy
Brown court
both
agreement
of the
and the negotiations leading to it and
that
concluded
there was no evidence that the
in-
parties
agreement
tended
the
merge
that
would
with
simply
the
and,
existing
therefore,
order
support
subject
be
to modifi-
Instead,
cation
a later entered order.
the court found
the parties’
evidence of
intent to
separate
create a
contrac-
obligation,
tual support
which the court
held
be enforce-
through an
in equity
performance.
able
action
for specific
Brown was followed
the
of
decision
this court in
Millstein,
Millstein v.
311 Pa.Super.
Importantly, despite agreement the fact that the provided upon divorce, parties’ support obligation the husband would be entered the form a The court order.
was not persuaded that this indicated an intent that merge Thus, itself would into any such order. held to enforceable separately obligation, significance being that the is a private parties contract between the which the court cannot modify. accepted exception to this proposition is that
536 agreement, the can raise the level court, adjudicating in the a it, not on the rationale that support, of child but lower right adequate the child’s to away cannot contract parent Brown, 863 n. 495 Pa. at n. A.2d support. 11. principles first variation from the
It that the was in the form appeared of Common- of Brown Millstein 359, 474 Tokach, 326 Pa.Super. rel. Tokach v. wealth ex intent of (1984). point parties the the Up A.2d 41 to had into an Tokach, parties entered controlled. to their divorce. support prior for child agreement providing any- itself not to have mentioned agreement appeared The incorporation or thing merger either the regarding However, into the decree. agreement anticipated divorce incorpo- provided agreement decree that the was the divorce into merger no mention of rated the decree. There was into noted, was implicat- As a divorce decree not decree. we while it was ed Brown Millstein Tokach. is no be- The court held that there distinction Tokach into of an a decree incorporation tween the words, the court ascribed its therein. In other merger into merge the intent to their parties “incorporate”. from the use of the word simply decree sepa- eliminated as a Merger caused be obligation. surviving The order rately support enforceable decree, order, the divorce the form a modification, obligation exposing support the husband’s decrease, showing of upon of increase or by way whether circumstances. changed time intent of for the first
Under the Tokach decision construing By incorporation did not parties control. which was now incorporated agreement equal merger, independent- not as an merged also could survive viewed as could modified the court. contract and ly enforceable Thus, applicable different rule simply enunciated a Tokach law, so that thereby, to divorce decrees. evolved they incorporat- if were support agreements did survive agreements did into decrees but that ed divorce if parties survive order so intended. Mill- stein. have
Later decisions limited the effect of Tokach and *52 returned to the Brown and approach. Millstein For exam- ple, Madnick, Pa.Super. Madnick v. 488 A.2d (1985), parties had agreed support to entry order and a separation agreement then executed containing support obligation identical to in the order. The amount of for in the provided order was later reduced a further by court order. then to attempted Wife obligation enforce husband’s under the agreement. The refused, finding trial court merged into the order. This court reversed. The court to returned parties’ of the analysis intent as in their expressed agree- ment and parties concluded that the had clearly not intend- ed obligations in the to expressed merged be into order. deciding,
In so the court specifically distinguished Tokach as having involved a opposed divorce decree as to a order. The court not explain did this com- why difference result, manded a different other than to state that to construe as to applying Tokach as support orders well as divorce decrees would be to it having construe as overruled This, course, Millstein. power was beyond panel to Tokach do. in reaction to the
Presumably decision or Tokach to similar decisions in cases decided in other jurisdictions, the language separation used both property settlement agreements and divorce decrees underwent a revision. The used, language at parties least who by were fortunate enough to represented be by attorneys who devoted them- to weaving selves their way through precedent maze of issue, this “incorporated became merged”. but not By using language, appears it that parties attempted have to accomplish two distinct objectives.
First, by specifically eschewing merger, they attempted agreements to ensure that their and divorce decrees would be construed the fashion dictated Brown and Mill- words, attempted express, clearly In to as they other stein. sur- agreements that their would possible, their intent separately continue as enforce- their divorce and would vive attempted to ensure that obligations. doing, they so able con- and that those obligations their contractual survived could not be obligations, exceptions, with limited tractual of the court. modified action Second, agreed incorporation without parties who availability to secure themselves merger attempted powers applicable sup- enforcement special the court’s that the By agreeing orders. port decree, consenting to the entry in the and then incorporated parties for such provided incorporation, of a decree that agreement, a default under the intended that in the event of wages and attachment of would be remedies like available. *53 meaning the intended this court addressed first the use merger and confirmed that incorporation without the first accomplish parties’ in fact language
of this
would
agree-
the
preserve
serve to
language
This
would
goal.
contained there-
obligations
the
put
ment and would
powers.
court’s modification
in
the reach of the
beyond
391,
McGough and Millstein and the mandate Brown precisely lows language on the the by focussing Tokach following cases agreement use to whether the themselves decide parties obligation or will and create an unmodifiable will survive a decree is entered. cease to exist once divorce modifying support upwards, child exception theWith the court to alter the permit alone does not incorporation entered into the private agreement terms of the the court to be able parties permit If the wanted parties. modify the terms of agreement, then agreement call for clearly incorporation must For merger. exam- a an ple, party with insecure financial may future have desired valve so he safety petition that or she could support obligation. court to reduce his or her If that is the case, negotiated should party agreement have that incorporated merged. not only but Application principle present this requires case affirm that we the trial court’s refusal to remit arrear- ages due under agreement the Sonders’ or to reduce the of support amount payable husband Although future. in some situations the parties’ intent may be difficult to ascertain, there is no present doubt record to what the Sonders intended. Their intentions clearly are ex- pressed the agreement They agreed itself. to weekly support payment per week. They prefaced $800 their agreement with a statement their indicating intent that the agreement would be the final settlement of all financial matters between them. (sim- See McGough Madnick ilar language agreement considered evidence of intent that order). would survive divorce and support decree They also provided repeatedly for the survival of the event of divorce and indicated that it would merge into the decree. The parties specifically that acknowledged was their entire to the relating sub- ject matter they thereof. Lastly, agreed agree- ment would continue in full force and effect unless termi- *54 nated the mutual by written consent both parties by the death one of them.
Moreover, after execution of the agreement, parties both consented to entry the divorce decree that excluded merger and neither party that decree. It appealed was not until attempted wife held in contempt have husband his willful refusal that took pay position husband the that the agreement merged had fact into the decree and that the court could adjust obligations therefore husband’s thereunder. by this hus- categorically reject attempt
I belated would and I parties clear intent of the would to avoid the band 1423 PHL 1986.3 appeal affirm the trial court number Concurring Dissenting Opinion Judge he states that 3. In Wieand’s of husband’s Petition would remand this matter for consideration he to Reduce and Remit his was never that the support obligation child because the Petition Judge opines actually by Wieand decided the trial court. Petition as if it were directed at court treated husband’s trial modify, parties’ agreement, the court cannot when in fact aspect parties’ divorce decree was directed at the of the Petition the that agreement. incorporated parties’ Since the latter is a court order, showing opines upon Judge that it is modifiable Wieand Thus, Judge changed Wieand would remand for a circumstances. changed, husband’s circumstances have determination of whether Judge recognizes entry that presumably since of the decree. Wieand therefore, would, contrary overrule result is to Millstein this Millstein. Millstein, only but also with view inconsistent not with I find this Hall, Brown, Court was which this Court is bound. In Brown v. reducing support reviewing obli- orders —one husband’s child two parties’ gation implemented the terms of the under a court order that agree- directing specific performance agreement, and the other and, agreement fully held that the enforceable ment. The court as the Millstein entered court order. stated, correctly reduced a later could not be Thus, specific the court affirmed the order of reducing previous support performance and vacated the order Brown, parties’ agreement. 495 Pa. at order which had reflected the 643, precisely point, dissented on 435 A.2dat 863. Justice Larsen stand, support stating allowing agreement order to thus that he would allow the reduced proceed the reduced amount and on the the wife to on it for J., (Larsen, signifi- dissenting). Id. for the balance. Brown, Judge disposition on which Wieand does cance of the comment, agreement for parties have an enforceable is that where agree- implementing that survives a court order child ment, that effectively support due under reduce the the court cannot later by reducing the order that due under agreement. implements the here, correctly Applying the trial court held that it that rationale support obligation, child whether viewed could not reduce husband's incorporat- itself or of the decree that as a reduction of ed it. If the rationale of the note that this is otherwise, have followed the trial court had held it would dissent, I further Brown but not of Brown. would precisely adopted in the resolution this court also modify support obli- McGough, the court refused to a child where arising incorporating gation and a divorce decree under an distinguish agreement. merging The court did not but not between modification of that obligation under the decree and under agreement. Judge opinion contrary analysis. Nothing to this in the Brown stating correctly quotes the Court as that it concurred Wieand Brown parties court’s principle to a divorce cannot restrict the "with the
541
—Enforceability—
issue,
remaining
arising
appeal
The last
from husband’s
orders,
from the trial court’s
1986
May
contempt
revolves
incorporation
merger
around the effect of
without
on the
enforcing support obligations arising
means of
from proper-
ty
separation agreements.
settlement or
Unfortunately,
McGough
question
is,
leaves this
unanswered. That
will
unmerged
incorporated
agreement
but
be enforceable
through the use of
contempt
civil
and incarceration as a
sanction therefor? Does a court
power
have the
to do what
the trial court in the instant case did when confronted with
a
who has
refused
party
steadfastly
pay
support
to
due
agreement
incorporated
under an
into the
decree
divorce
the court has found that
pay,
when
that
is able to
party
has determined that the
is
agreement
enforceable? Can the
to be in
adjudge
party
civil
and order
purges?
him/her
incarcerated until he/she
facts, circumstances,
power modify
justice
support
a
order as
Id.,
642-43,
may require.”
(emphasis
Turning law, to the applicable I find first that the Divorce Code itself addresses the enforcement of separation agree- ments through divorce 401(b) decrees. Section provides:
Section Decree court. 401. of (b) Any decree granting annulment, a divorce or an shall include after full hearing, where these matters are raised the complaint, the answer or petition, other order or orders determining disposing and of existing property rights and interests the parties, between custody rights, visitation child support, alimony any other related including matters the enforcement of separation agreements voluntarily entered into between the parties. the enforcement rights any party such any matters, the court necessary powers, shall have all includ- to, not ing but limited power contempt power wages. to attach 401(b) tit. (Purdon
Pa.Stat.Ann. Supp.1987). § this Although section does directly impo- address the sition of civil as enforcing a means a support obligation arising under an has incor- been decree, but not into porated merged implica- a divorce 401(b) from arising quesion tion Section to this is clear. section, Through legislature has provided parties to divorce actions a they method can their elevate pre-divorce agreements beyond level a standard *57 contract, commercial as to which enforcement is customar- ily limited to actions at law for breach and actions in equity specific performance, for pro- followed normal execution They cedures. can do so by securing, part as of the divorce decree, an order or of determining disposing the “enforce- ment of separation agreements.” [their]
Therefore, the precise question whether, before us is provides where a court enters a divorce decree that for the incorporation but not the of an merger agreement, has the thereby court “an provides entered order ... [which for] the separation agreements ... enforcement of voluntarily entered into the the parties____” meaning within 401(b), itself, thus preserved the under last line of 401(b), Section the power contempt, including incarcera- tion, for later enforcement of agreement. the 401(b)
Section not require agreement does that an be merged into the decree it to be enforced con- through tempt wage attachment. merely requires It that the decree, enter, part court an order which provides agreement. here, for enforcement of the Where as the agreement decree states that is incorporated the but merged, the parties’ agreement provides, also so there only logical is one construction. agreement is not merged, However, it i.e. survives. the decree does include the agreement incorporated because is there- Thus,
in. achieves status of a decree of and, court under the specific 401(b), language Section may court “all employ necessary powers, including .. .the power contempt and .. .to attach wages” to enforce agreement. Under this clear language, the court em- may its full ploy contempt power, including power to incar- cerate with the opportunity purge order to compel performance with the agreement, which is now included the court’s own decree.
The alternative to this view is the view that the only significance of incorporation without is merger agreement thereby effect, attains res judicata i.e. it is not subject collateral attack as a view, contract. Under this would not be enforceable other than as any normal commercial contract. Underlying this view is a concern that to permit the court to use enhanced enforce- ment powers as to such an agreement would result in the being compelled to enforce the if agreement, as it order, were the court’s despite own the fact that the court powerless would be to review the fairness of agree- ment’s terms and modify them where necessary. fact, there need no such concern for whether this
approach result in will the enforcement grossly unfair agreements which the court powerless to modify so as to 401(b) render them fair. requires Section that provision for enforcement of such agreements be included in the decree *58 after full only hearing conducted, a has been and requires that enforcement in provisions the decree only relate to agreements Thus, voluntarily entered into. there need be no concern that the contempt powers court’s will be em- ployed to enforce agreements that are so grossly unfair as to be or unenforceable, unconscionable that are otherwise fraud, i.e. grounds of mistake or the like. Presumably, all objections such to the agreement will aired fully and hearing” resolved the “full that the Code requires. case, the instant for the example, of enforceability agreement and husband’s to ability pay under it have been the of subject hearings. numerous equally There is no from difficulty arising the that fact changes of circumstance between the entry decree the for petition contempt may inequitable render it the for court to enforce the full re- the amounts quired arise, thereunder. If such situation would the not grant petition court could the for contempt since the of requirements contempt, fundamental civil the i.e. that alleged contemnor has to willfully failed comply and capable of presently the paying necessary purge amount to his contempt, himself of would be fulfilled. Under such circumstances, a of finding the certainly imposition the sanction of incarceration would constitute an abuse of discretion. the
Perhaps best indicator the overall the fairness of approach suggest I is the fact the legislature has amended the Divorce recently Code to allow for a similar result. Effective February 1988, the Divorce Code was amended to include following provision: new
Section 401.1. of agreement Effect between parties. (a) A party an agreement regarding matters within jurisdiction act, the court under this whether or not the agreement has merged incorporated been or into decree, may utilize a or remedy sanction set forth in this act to enforce the to the same as extent though had. order been an of the court except provided contrary agreement. (b) A provision of an agreement regarding child support, visitation custody shall be subject modification upon the court a showing changed circumstances. (c) In specific the absence of a provision to the contrary appearing the agreement, provision regarding disposition of existing property rights be- interests parties, tween lite, alimony, alimony pendente counsel expenses fees or shall not be subject modification the court. (Purdon 1988).
Pa.Stat.Ann. tit. 401.1 Further clarifi- § cation powers court in enforcing agree- such found in 401(k), ments is section new specifically *59 that a fails to provides party comply agree- where with an by parties, hearing, ment as entered into after the court find such in may party contempt may civil incarcerate 401(k). up him/her for to six months. Id. § modifiability, As to Section 401.1 to the court preserves ability modify support, child visitation or custody, areas where the of the that ability court ensure child’s interests are always regarded best served has been as being paramount importance. remaining
As to the issues between the to a parties divorce, like division and the court property alimony, will change power parties’ agreements have unless the confer parties specifically power such on the court. agreements, regardless
As enforcement of such whether the court can modify particular aspect not, by will be enforceable all of the means to a court in enforcing available its own orders Code, including under the Divorce attachment of wages and civil unless the contempt, parties expressly agree that such powers enforcement will not be in the of a available event agreement. default under their Thus, the not to legislature appears itself be concerned about the of a court its propriety using contempt powers, including incarceration where to enforce necessary, obli- gations pursuant to private agreements, even where certain terms of agreements such are not to modification subject the court. Presumably, legislature rely, is content to I, am on the just and fair exercise of discretion our trial in deciding courts when and if incarcera- contempt and/or tion, is appropriate. foregoing addition to the of the analysis Divorce Code power of the court to civil con- employ
tempt, including incarceration, the sanction of to force compliance with an is incorporated decree, I also find support for the court’s exercise of its contempt powers this situation in the law enforce- contempt general. ment of Civil *60 generally a means of compelling performance with a court order or decree. Barrett, Barrett 470 Pa. 368 A.2d (1977). prior Even to the enactment of the Divorce Code, the use of civil contempt, including the sanction of incarceration, to enforce support obligations under orders was Moreover, well-established. Id.
court confirmed the
propriety
using
contempt
civil
the sanction of incarceration to enforce support obligations
arising
private
from
agreements
incorporated
that were
into court decrees. Hopkinson v. Hopkinson, 323 Pa.Su-
per.
(1984).
It is clear that the husband’s flagrant and willful dis- regard of the lower matter, court’s orders in this by his inaction in fulfilling his duties of support, justify his adjudication of contempt. too, So his imprisonment on weekends, until he purges himself of contempt, is a proper sanction to imposed by the lower court for this civil contempt. To hold otherwise would render the Court of Common powerless Pleas to effectively implement its while, directives time, at the same allow the husband to escape obligations his valid, under a separation counselled agreement.
Id., 323 Pa.Superior
Ct. at
and incarceration was even justified more than the action of the court in Hopkinson. Here, the trial court’s contempt adjudication was employed only not to compel performance obligations husband’s pursuant agreement, his was specifically incorporated into the divorce decree manner consistent 401(b) with Section Code, Divorce but also to compel performance with two of the court’s own orders; prior directing one specific performance of the and the other finding husband
ordering him pay accrued and make arrearages future The use of the payments. gamut full of contempt powers to enforce a support obligation under such circumstances is appropriate but is one of the only most necessary it, effective uses of contempt. Without the trial court powerless. effectively
The majority would not only reject my analysis of the significance under the Divorce Code of incorporation with- Hopkin- merger agreement, out of an reject but would also son as correct alternative for the authority use of civil contempt with incarceration support agreement to enforce a *61 incorporated would, into a court decree. majority The in fact, overrule Hopkinson.
The majority’s primary difficulty with the Hopkinson
decision is apparently not that
the court
finding
affirmed a
of
contempt,
civil
but
that
the court also affirmed the
incarceration of the
until he
appellant
purged
had
himself.
Hopkinson
The "majority
to this
objects
aspect of
on the
Colburn,
basis of Colburn v.
249,123
(1924).
279 Pa.
A. 775
The majority construes Colburn as a determination by the
Supreme Court
that a court of
lacks the
equity
power
incarcerate
for failure to comply
directing
with an order
specific performance of a separation agreement providing
for support payments and thus as a
to the
bar
incarceration
approved in Hopkinson. Colburn
notes that
majority
12, 1842,
was decided under
the
July
Act of
P.L. 339.
Although the majority recognizes
12,
that
the Act of July
repealed
1842 was
Judiciary
Repealer
Act
Act
in
1978, the majority states
Colburn
nevertheless
has
continuing
law,
under
vitality
present
statutory
namely
5108(a)
Section
of Title
the majority
which
believes to be
substantial
reenactment of the Act of July
1842. The
Slatowski,
cites to Silvestri v.
also
majority
423 Pa.
and Commonwealth
Magaziner
ex rel.
(1966)
Colburn involved
for
as to
had
an order of
support,
wife
obtained
performance.
still did not
specific
pay,
When husband
wife
Colburn,
“petitioned]
attachment.”
[husband’s]
*62
250,
Thus, on
Pa. at
550 I also disagree with the majority’s interpretation , statute underlying Colburn, the 12, 1842, Act of July of present statutory Neither 12, law. the Act of July nor present statutory provisions prohibit incarceration for civil a case like the one sub judice. The Act of 12, 1842, July 257, codified at prohibited P.S. only § arrest or imprisonment of a person in any suit for the recovery on a money judgment or decree upon founded a contract. The statute does contain an exception rule, to this however, which the majority does not mention. The statute permitted arrest or imprisonment “in proceeding, as for remedies____” contempt, to enforce civil Since Colburn itself did not address such a contempt adjudication, the Colburn Court did not address aspect of the statute.
Moreover, 12, the Act of July repealed in 1978 by the Judiciary Act Repealer Act. The majority is not troubled by this fact because the majority would find that the Act was reenacted in 5108(a) Section of the Judiciary Code. 42 (Purdon Pa.Cons.Stat.Ann. 1981). I find § no support for this view.
Section 5108 is generally entitled “Imprisonment for (a), debt.” Subsection quoted majority, headed “constitutional restriction” and is no more than a repetition of our constitution’s language on this subject, which does not refer to the exercise of a court’s civil contempt powers. The Derivation Tables that accompany the Judiciary Act of 1976 and the Judiciary Repealer Act Act of 1978 specifically do not provide that 5108(a) Section is derived from any prior act. It would appear to provision, be new deriving solely from the constitution itself. (b)
Subsection of Section quoted by the majori- ty, adds “statutory restriction” on imprisonment debt, and states that “except in an action for fines or penalties, or as punishment for contempt, or to prevent departures from the Commonwealth, a defendant may not be arrested in any civil matter.” This section is derived from former Title Section not from the Act of July 1842 which was *63 considered in fact, Colburn. In the Disposition Tables 12, 1842 relied July of the Act of portion reveal that including excepting contempt Colburn, in section upon 1722(a) Section disposed was proceedings, Supreme power This Court grants Code. Judicial alia, the conduct of the regarding, rules inter prescribe enforcing court serving process and all officers or courts contempt either specifically It does not address orders. for debt. imprisonment 12, 1842,
Thus, I Act of the sole disagree July that the Colburn, specifically has been holding for the basis present statutory law. reenacted that either majority’s I assertion Sil- Finally, reject ex rel. Magaziner or Commonwealth vestri v. Slatowski on this issue. In value any precedential have Magaziner this issue on Silvestri, the court declined consider simply disapproved In the court Magaziner, the record before it. had failed court’s incarceration of a husband who the trial belong- his home to retrieve her his wife to enter allow for the he had to do so. basis ings, although agreed that there no court order of disapproval court’s was was his obligation to allow wife any addressing kind husband’s home, had com- that the trial court into the and moreover in at- ignored procedural requirements pletely applicable fact, In the actual tempting to have the husband arrested. that the case was moot because holding Magaziner is directing attach- trial court had rescinded its order already simply precedential ment of the Magaziner husband. herein. presented on the issue sum, I persuasive any majority’s do not find of the view that trial courts lack the
arguments favor willfully who has refused to power party to incarcerate due under an that has been pay per- specifically in a court decree and ordered incorporated finding for a formed, long requirements so as the civil possi- of incarceration with the imposition and for Therefore, I are satisfied. conclude bility purge continue to be correctly decided and should Hopkinson applied. *64 manner the which trial court in the instant case power good
exercised its contempt
provides
example
to
other
parties.
trial courts faced with
recalcitrant
similarly
The trial court
Dr.
contempt
held
Sonder
civil
and or-
dered him
paid
$10,000
incarcerated until he
at
least
the
$41,000 in support arrearages then due. This sanction was
however,
imposed,
only after the trial court had separately
determined that
valid
binding
contract, had ordered husband to
comply,
had conduct-
two full hearings
ed
concerning
ability
pay
husband’s
to
amounts
under
agreement.
due
At the conclusion of
the first
hearing,
the court held
husband
con-
tempt
sanction,
but refrained from imposing any
chosing
again
instead to order husband once
pay.
to
It was only
failed,
after this
and after the court held
hearing
another
and received further testimony concerning husband’s finan-
condition,
cial
that the
its power
court exercised
to hold
husband in
him
contempt
order
incarcerated until he
$10,000.
purged himself by paying the
reviewing
action,
In
only
trial court’s
we have
one
object
ascertain whether the court erred by applying
—to
legal
the wrong
standard or
its
abused
discretion
deter-
mining
the support
facts without
of competent evidence of
great
record.
must
give
weight
We
trial court’s
Hawkins,
exercise of its discretion. Commonwealth v.
(1983).
Pa.Super.
Here,
I would affirm the order of the appeal trial court in Phi number 1343 1986. sum, I dispose appeals would of these consolidated
follows: 2259 Phi 1985 Dismiss.
Appeal No. Quash. Phi 1985 No. 3025 Appeal No. 1423 Phi 1986 Affirm. Appeal No. Phi 1986 Affirm. Appeal