# D'Huy v. D'Huy > Supreme Court of Pennsylvania · January 23, 1990 · 390 Pa. Super. 509 URL: https://www.frixlaw.com/law-library/cases/9706036 ## Case - **Full name:** Polly Ann D’HUY, Appellee, v. Gerard J. D’HUY, Appellant; Gerald J. D’HUY, Appellant, v. Polly Ann D’HUY, Appellee - **Court:** Supreme Court of Pennsylvania - **Decided:** January 23, 1990 - **Citations:** 390 Pa. Super. 509; 568 A.2d 1289; 1990 Pa. Super. LEXIS 80 - **Precedential status:** Published - **Opinion:** Concurring in part by Johnson - **Judges:** Cirillo, Cavanaugh, Brosky, Rowley, Montemuro, Beck, Tamilia, Popovich, Johnson, Johnson'S - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706036 ## Opinion text JOHNSON, Judge, concurring and dissenting. In the trial court, Polly D’Huy (Wife) brought a declaratory judgment action seeking a determination as to her continuing right to receive alimony under the terms of a property settlement agreement. Gerard J. D’Huy (Husband) filed a petition for special relief seeking to terminate alimony payments required by the agreement. Husband appeals from the order which sustained Wife’s position and refused to terminate the payments to Wife. The property settlement agreement provided that Husband would pay alimony to Wife at the rate of $400 per week for two years and at the rate of $1,650 per month for ten years thereafter, with payments to continue to be made, or the balance due under the agreement to be paid out in a lump sum by Husband's estate in the event of his death prior to the completion of the agreement. The trial court found that the $1,650 monthly payments were not actually alimony as defined by section 104 of the Divorce Code, 23 P.S. § 104, but rather represented a payout of Wife’s share of marital property. The trial court therefore concluded that the payments were not subject to the termination provisions of Section 501(e) of the Divorce Code, 23 P.S. § 501(e) or the bar to alimony of Section 507 of the Code, 23 P.S. § 507, and that Wife’s right to receive those payments was not affected by her admitted cohabitation or intended remarriage. On appeal, Husband asks us to revisit the question of whether incorporation of the settlement agreement into a divorce decree results in the agreement losing its independent effect, thereby requiring the application of Sections *524 501 and 507 of the Code. Subsumed under this issue is whether the word “alimony” as set forth in the written property settlement agreement is ambiguous, thus permitting the introduction of parol evidence to explain its meaning. I must respectfully dissent from the majority’s insistence on revisiting Sonder v. Sonder, 378 Pa.Super. 474 , 549 A.2d 155 (1988) along with those cases which preceded it, for the purpose of determining whether the agreement merged into the divorce decree or “lost its identity as an enforceable contract.” On May 11, 1989, this court entered an order listing this case for argument before the court en banc. The only reason for affording en banc consideration was to determine the applicability of Section 2 of the Act of February 12, 1988, P.L. 66, No. 13, effective immediately, 23 P.S. § 401.1, (Act 13). The majority declines to consider the impact of newly enacted § 401.1 since neither party raised the issue on appeal. I must disagree. Firstly, the appeal was taken on December 24,1987, some two months before the passage of Act 13, for the review of an order entered on December 1, 1987. It therefore is not surprising that the parties did not raise this issue initially. Secondly, the parties were directed to file supplemental briefs on the applicability of newly enacted Section 401.1 and they did so. Thirdly, the analysis in the majority opinion, slip opinion pages 5 — 9, of Sonder v. Sonder, supra; McGough v. McGough, 361 Pa.Super. 391 , 522 A.2d 638 (1987); Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359 , 474 A.2d 41 (1984); Brown v. Hall, 495 Pa. 635 , 435 A.2d 859 (1981); and Millstein v. Millstein, 311 Pa.Super. 495 , 457 A.2d 1291 (1983), is exactly the kind of complexity which the legislature sought to obviate by passage of Act 13. On February 12, 1988, Act 13 was approved, to take effect immediately, amending the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26. The amendatory act added a new section to the Divorce Code, providing as follows: *525 Section 401.1 Effect of agreement between parties (a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement. (c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court. Appellant asks us to find the provisions of the agreement to be alimony. We need not set forth those provisions here, since, in my judgment, Section 401.1(c) of the Code, above, controls this appeal. There being no specific provision to the contrary in the agreement, the provisions regarding the disposition of existing property rights and interests between the parties, as well as alimony, are not subject to modification by the court. Since there exists no ambiguity in those sections of the parties’ agreement upon which Wife sought, and received, a declaratory judgment, we need not consider whether the word “alimony” contains any latent ambiguity. Even if it did, I read Section 401.1(c) as being very clear as to the legislative intent. Without passing upon the rationale of the trial court, I would find that the order from which these consolidated appeals are taken did not modify the agreement between the parties. The order is in conformity with the statutory mandate. Accordingly, I concur in the conclusion of the majority that the order should be affirmed. I would do so, however, on the basis of the legislative declaration that agreements regarding the disposition of existing property rights shall *526 not be subject to modification by the court in the absence of a specific provision to the contrary. 23 P.S. § 401.1. MONTEMURO and POPOVICH, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706036. Public record. Not legal advice.