# Sonder v. Sonder

> Supreme Court of Pennsylvania · September 29, 1988 · 378 Pa. Super. 474

URL: https://www.frixlaw.com/law-library/cases/9746742

## Case

- **Full name:** Suzanne C. Shulman SONDER v. Carl R. SONDER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 29, 1988
- **Citations:** 378 Pa. Super. 474; 549 A.2d 155; 1988 Pa. Super. LEXIS 2898
- **Precedential status:** Published
- **Opinion:** Concurring in part by Beck
- **Judges:** Cirillo, Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia, Popovich
- **Cited by:** 95 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Sinaiko v. Sinaiko.
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746742

## How later opinions describe it (automated extraction)

- stating that case is moot when determination sought could not have any practical effect on existing controversy

## Opinion text

BECK, Judge,
concurring and dissenting:
This case raises issues central to our family law jurisprudence and provides this court an opportunity to eliminate the confusion surrounding these issues which has persisted in our case law for years. The crux of the matter is a question of the power of our courts — their power to modify and enforce obligations relating to child support, alimony, property distribution upon divorce, and property settlement or separation agreements incorporated and/or merged into *530 divorce decrees. Although we have addressed many forms of this question, arising from fact patterns as diverse as they are numerous, in my opinion we have not done so with a sufficient degree of clarity or consistency. We have failed to provide either the trial court bench or the bar with any true guidance. As a result, our trial courts have struggled and understandably failed to come to a consistent approach to these issues. 1 The bar has been forced to employ “magic” words like “incorporate” and “merge” in the agreements they draft and the forms of divorce decrees they choose, always awaiting new decisions that will instruct them to adjust their incantations once again. 2
In this case, the facts fall into an all too familiar pattern. It is fundamentally the story of a husband who will not pay the support he has both agreed to pay and which he has been ordered to pay and of a wife’s attempts over a period of years to force him to pay. Specifically, the facts are as follows.
On November 29, 1983, Suzanne and Carl Sonder, who were then separated but still married, executed an agreement in which they agreed upon the disposition of their *531 property and the custody and support of their two minor children. The agreement provided that Dr. Sonder (“husband”) would pay Mrs. Sonder (“wife”) $800 per week in child support. It did not provide for any payments in the nature of spousal support or alimony. Other provisions of the agreement of particular importance here are as follows:
[Section 11] ENFORCEMENT.
(a) It is expressly understood and agreed by and between the parties hereto that this Agreement may be specifically enforced by either Husband or Wife in a Court of Equity____
(b) Notwithstanding anything to the contrary herein, Husband or Wife may also proceed with an action at law for redress of any of his or her rights under the terms of this Agreement.
(c) It is specifically understood and agreed by the parties that in the event of a default under the terms of this Agreement, the non-defaulting party shall have the right to file a Petition for contempt and request such relief and remedies as authorized by law.
[Section 16] ENTIRE AGREEMENT, MERGER AND INTEGRATION
Husband and Wife do hereby covenant and warrant that this agreement contains all of the representations, promises and agreements made by either of them to the other for purposes set forth in the preamble hereinabove; that there are no claims, promises or representations not herein contained, either oral or written, which shall or may be charged or enforced or enforceable unless reduced to writing and signed by both of the parties hereto; and the waiver of any term, condition, clause or provision of this agreement shall in no way be deemed or considered a waiver of any other term, condition, clause or provision of this agreement.
[Section 17] INCORPORATION IN JUDGMENT FOR DIVORCE. *532 In the event either Husband or Wife at any time hereafter obtain a divorce in the cause presently or hereafter pending between them, this Agreement and all of its provisions shall be incorporated into any such judgment for divorce, either directly or by reference. This Agreement, upon incorporation, shall not merge into the decree, but shall remain in full force and effect. The court on entry of the judgment for divorce shall retain the right to enforce the provisions and the terms of the Agreement.
[Section 18] AGREEMENT TO CONTINUE IN EVENT OF DIVORCE
This Agreement shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties, or to the extent it is appropriately terminated by the death of either party under the terms of this Agreement. ...
On July 17, 1984, wife filed for divorce. On October 16, 1984, wife instituted an action in equity for specific performance of the agreement, alleging that husband had paid only $400 per week for several months. On March 27,1985, the trial court ordered husband to comply with the agreement in tMo and later denied husband’s exceptions to that order. Husband appeals this order in appeal number 2259 PHL 1985.
Husband thereafter continued to refuse to pay the full $800 to which he had agreed. Thus, wife filed a petition for contempt on April 18, 1985. On October 24, 1985, the court found husband in contempt of the March 27, 1985 order, ordered him to pay what then amounted to almost $29,000 in child support arrearages and $1,000 for wife’s counsel fees and costs, and ordered him to comply in future with his obligations under the agreement. Husband appeals this order in appeal number 3025 PHL 1985.
On December 13,1985, the parties were divorced by entry of a final decree of divorce. The decree specifically incorporated the agreement in full into the decree, but provided that the agreement did not merge with the decree.
*533 On January 3, 1986 wife filed a new petition for contempt. Husband replied by filing a petition to remit the arrearages under the agreement and to reduce his child support obligation thereunder from $800 per week to $400 per week.
On May 13, 1986, in the course of a hearing in this matter, the court orally denied husband’s petition to remit arrearages and to modify the agreement. Husband appeals this order in appeal number 1423 PHL 1986.
In the course of the same hearing, the court again found husband in contempt and ordered him either to pay $10,000 against the then outstanding arrearages of almost $41,000 or be incarcerated. After several unsuccessful attempts by husband to stay the court’s May 13th order of contempt, on May 21,1986, the trial court entered a written order adjudging husband to be in contempt and ordering him to pay $10,000 forthwith or to be incarcerated every weekend until he purged himself of his contempt by paying the $10,000. Husband appeals this contempt adjudication in appeal number 1343 PHL 1986.
All of the foregoing appeals have been consolidated before this court.
The first two of husband’s appeals may be summarily disposed of. Appeal number 2259, which is taken from the order declaring the agreement to be enforceable and ordering husband to comply, has been rendered moot by husband’s later implicit recognition of the binding and enforceable nature of the agreement. It was husband who took pains to ensure that the divorce decree would provide for the incorporation of the agreement into the decree. In doing so, husband implicitly conceded that the agreement is valid and enforceable. Moreover, husband has not appealed from the divorce decree itself, into which the agreement was incorporated. Thus, the appeal from the trial court’s determination that the agreement is an enforceable contract is moot and should be dismissed.
Appeal number 3025 is from the court’s first order adjudging husband to be in contempt. This order is clearly *534 interlocutory in that an order adjudging someone in contempt without imposing any sanction therefor is not final. McManus v. Chubb, 342 Pa.Super. 405 , 493 A.2d 84 (1985); Hester v. Bagnato, 292 Pa.Super. 322 , 437 A.2d 66 (1981). The contempt order appealed from in this appeal did not impose sanctions on husband. It merely declared him in contempt and ordered him to comply with his obligations under his agreement. No fine or imprisonment was ordered. Thus, the order is interlocutory and the appeal must be quashed.
The remaining appeals, which raise issues of central importance, are not so easily resolved. The issues are: (a) where a property settlement/separation agreement is incorporated but not merged into a divorce decree, does the court have the power to modify the agreement; and (b) does the court have contempt powers, including incarceration, and other enforcement powers in the face of non-compliance with that agreement. In my view, these issues are inextricably intertwined. They both concern the effect of the incorporation without merger of a property settlement agreement into a divorce decree. As stated above, this is fundamentally a question of the power of the court vis-a-vis the obligations set forth in the agreement.
—Modifiability—
Although existing case law on this subject is not perfectly clear, in my view one basic and highly salutary proposition does emerge. To a large degree, our case law has made the resolution of the question of modifiability dependent on the intent of the parties to the agreement. Even the most cursory review of the applicable cases reveals this common thread.
In Brown v. Hall, 495 Pa. 635 , 435 A.2d 859 (1981), the Supreme Court was asked to decide whether an agreement providing for child support, executed after entry of one support order, survived a subsequently entered support order for a lower amount. The court concentrated its analysis on ascertaining the intent of the parties. The Brown court engaged in a lengthy review of both the terms *535 of the agreement and the negotiations leading to it and concluded that there was no evidence that the parties intended that the agreement would simply merge with the existing support order and, therefore, be subject to modification by a later entered order. Instead, the court found evidence of the parties’ intent to create a separate contractual support obligation, which the court held to be enforceable through an action in equity for specific performance.
Brown was followed by the decision of this court in Millstein v. Millstein, 311 Pa.Super. 495 , 457 A.2d 1291 (1983), which raised a similar issue. Although both Brown and Millstein involved support orders and support agreements and did not involve divorce decrees and property settlement/support agreements, which are at the center of the instant case, both Brown and Millstein are nevertheless instructive. Once again, the question in Millstein involved the interplay of a support agreement and a support order. In Millstein , however, unlike in Brown , the support agreement had been executed before any support order had been entered. The court held this to be a distinction without a difference, holding that the analysis of Brown still applied. The intent of the parties would determine the impact of the subsequently entered support order on the existing support agreement. Since the Millstein court found no evidence that the parties intended a subsequent support order to override the agreement or to constitute a merger of the agreement into the order, the court held that the agreement survived the support order.
Importantly, the Millstein court reached this conclusion despite the fact that the agreement provided that upon the parties’ divorce, the support obligation of the husband would be entered in the form of a court order. The court was not persuaded that this indicated an intent that the agreement itself would merge into any such order. Thus, the agreement was held to be a separately enforceable obligation, the significance being that the agreement is a private contract between the parties which the court cannot modify. The accepted exception to this proposition is that *536 the court, in adjudicating the agreement, can raise the level of child support, but not lower it, on the rationale that a parent cannot contract away the child’s right to adequate support. Brown, 495 Pa. at 643 n. 11, 435 A.2d 859 , 863 n. 11.
It was in 1984 that the first variation from the principles of Brown and Millstein appeared in the form of Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359 , 474 A.2d 41 (1984). Up to this point the intent of the parties controlled. In Tokach , the parties had entered into an agreement providing for child support prior to their divorce. The agreement itself appeared not to have mentioned anything regarding either the incorporation or merger of the agreement into the anticipated divorce decree. However, the divorce decree provided that the agreement was incorporated into the decree. There was no mention of merger into the decree. As we noted, a divorce decree was not implicated in Brown and Millstein while it was in Tokach .
The Tokach court held that there is no distinction between the incorporation of an agreement into a decree and its merger therein. In other words, the court ascribed to the parties the intent to merge their agreement into the decree simply from the use of the word “incorporate”. Merger caused the agreement to be eliminated as a separately enforceable support obligation. The surviving order was in the form of a court order, the divorce decree, exposing the husband’s support obligation to modification, whether by way of increase or decrease, upon a showing of changed circumstances.
Under the Tokach decision for the first time the intent of the parties did not control. By construing incorporation to equal merger, the incorporated agreement which was now viewed as also merged could not survive as an independently enforceable contract and could be modified by the court. Thus, Tokach simply enunciated a different rule applicable to divorce decrees. The law, thereby, evolved so that support agreements did not survive if they were incorporated into divorce decrees but that support agreements did *537 survive a support order if the parties so intended. Mill-stein.
Later decisions have limited the effect of Tokach and returned to the Brown and Millstein approach. For example, in Madnick v. Madnick, 339 Pa.Super. 130 , 488 A.2d 344 (1985), the parties had agreed to the entry of a support order and then executed a separation agreement containing a support obligation identical to that in the order. The amount of support provided for in the order was later reduced by a further court order. Wife then attempted to enforce husband’s obligation under the agreement. The trial court refused, finding the agreement merged into the order. This court reversed. The court returned to an analysis of the parties’ intent as expressed in their agreement and concluded that the parties had clearly not intended the obligations expressed in the agreement to be merged into the order.
In so deciding, the court specifically distinguished Tokach as having involved a divorce decree as opposed to a support order. The court did not explain why this difference commanded a different result, other than to state that to construe Tokach as applying to support orders as well as divorce decrees would be to construe it as having overruled Millstein . This, of course, was beyond the power of the Tokach panel to do.
Presumably in reaction to the decision in Tokach or to similar decisions in cases decided in other jurisdictions, the language used in both separation or property settlement agreements and divorce decrees underwent a revision. The language used, at least by parties who were fortunate enough to be represented by attorneys who devoted themselves to weaving their way through the maze of precedent on this issue, became “incorporated but not merged”. By using this language, it appears that parties have attempted to accomplish two distinct objectives.
First, by specifically eschewing merger, they attempted to ensure that their agreements and divorce decrees would be construed in the fashion dictated by Brown and Mill- *538 stein. In other words, they attempted to express, as clearly as possible, their intent that their agreements would survive their divorce and would continue as separately enforceable obligations. In so doing, they attempted to ensure that their contractual obligations survived and that those contractual obligations, with limited exceptions, could not be modified by action of the court.
Second, parties who agreed to incorporation without merger attempted to secure to themselves the availability of the court’s special enforcement powers applicable to support orders. By agreeing that the agreement was to be incorporated in the decree, and then consenting to the entry of a decree that provided for such incorporation, the parties intended that in the event of a default under the agreement, remedies like contempt and attachment of wages would be available.
In 1987, this court addressed the first intended meaning of incorporation without merger and confirmed that the use of this language would in fact accomplish the parties’ first goal. This language would serve to preserve the agreement and would put the support obligations contained therein beyond the reach of the court’s modification powers. McGough v. McGough, 361 Pa.Super. 391 , 522 A.2d 638 (1987). The only exception permitted was the situation noted in Millstein , i.e. where the best interests of the child required that the amount of support provided for in the agreement be increased. Id., 361 Pa.Superior Ct. at 392-93 n. 1, 522 A.2d at 639 n. 1.
McGough is unquestionably a proper resolution. It follows precisely the mandate of Brown and Millstein and cases following Tokach by focussing on the language the parties themselves use to decide whether the agreement will survive and create an unmodifiable obligation or will cease to exist once a divorce decree is entered.
With the exception of modifying child support upwards, incorporation alone does not permit the court to alter the support terms of the private agreement entered into by the parties. If the parties wanted to permit the court to be able *539 to modify the terms of the agreement, then the agreement must clearly call for incorporation and merger. For example, a party with an insecure financial future may have desired a safety valve so that he or she could petition the court to reduce his or her support obligation. If that is the case, the party should have negotiated an agreement that is not only incorporated but merged.
Application of this principle in the present case requires that we affirm the trial court’s refusal to remit the arrearages due under the Sonders’ agreement or to reduce the amount of support payable by husband in future. Although in some situations the parties’ intent may be difficult to ascertain, there is no doubt on the present record as to what the Sonders intended. Their intentions are clearly expressed in the agreement itself. They agreed to a weekly support payment of $800 per week. They prefaced their agreement with a statement indicating their intent that the agreement would be the final settlement of all financial matters between them. See McGough and Madnick (similar language considered evidence of intent that agreement would survive divorce decree and support order). They also provided repeatedly for the survival of the agreement in the event of divorce and indicated that it would not merge into the decree. The parties specifically acknowledged that this agreement was their entire agreement relating to the subject matter thereof. Lastly, they agreed that the agreement would continue in full force and effect unless terminated by the mutual written consent of both parties or by the death of one of them.
Moreover, after execution of the agreement, both parties consented to the entry of a divorce decree that excluded merger and neither party appealed that decree. It was not until wife attempted to have husband held in contempt for his willful refusal to pay that husband took the position that the agreement had in fact merged into the decree and that the court could therefore adjust husband’s obligations thereunder.
*540 I would categorically reject this belated attempt by husband to avoid the clear intent of the parties and I would affirm the trial court in appeal number 1423 PHL 1986. 3
*541 —Enforceability—
The last remaining issue, arising from husband’s appeal from the trial court’s May 1986 contempt orders, revolves around the effect of incorporation without merger on the means of enforcing support obligations arising from property settlement or separation agreements. Unfortunately, McGough leaves this question unanswered. That is, will an unmerged but incorporated agreement be enforceable through the use of civil contempt and incarceration as a sanction therefor? Does a court have the power to do what the trial court in the instant case did when confronted with a party who has steadfastly refused to pay the support due under an agreement incorporated into the divorce decree when the court has found that that party is able to pay, and has determined that the agreement is enforceable? Can the court adjudge that party to be in civil contempt and order him/her incarcerated until he/she purges?
*542 To ray mind, the answer is clear. The court has the power to employ the full gamut of its civil contempt powers to enforce such incorporated agreements and should exercise these powers where, pursuant to the requirements of law for an adjudication of contempt, the trial court determines in its discretion that the situation merits this remedy. I find support for this view in the Divorce Code itself, as well as in the law of civil contempt.
I note preliminarily that in analyzing this issue in the context of the matter sub judice, we should not blind ourselves to the fact that the Sonders themselves expressly provided for the use of contempt in their agreement. These parties foresaw the possibility that the assistance of the court might be required in enforcing obligations under the agreement. To provide for this eventuality, they expressly agreed that in the event of a default, the non-defaulting party would have the right to proceed either with an action at law, an action in equity (for specific performance) or through filing a petition for contempt. The agreement, including these provisions, has already been held to be an enforceable contract, an order directing husband specifically to perform his obligations has been entered; and husband’s appeal from these matters is moot. Thus, to the extent the parties’ intent is relevant as to this issue, we should have no difficulty in finding that they intended to and did consent to the use of the court’s contempt powers.
Turning to the applicable law, I find first that the Divorce Code itself addresses the enforcement of separation agreements through divorce decrees. Section 401(b) provides:
Section 401. Decree of court.
(b) Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. *543 In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages.
Pa.Stat.Ann. tit. 23 § 401(b) (Purdon Supp.1987).
Although this section does not directly address the imposition of civil contempt as a means of enforcing a support obligation arising under an agreement that has been incorporated but not merged into a divorce decree, the implication arising from Section 401(b) as to this quesion is clear. Through this section, the legislature has provided parties to divorce actions a method by which they can elevate their pre-divorce agreements beyond the level of a standard commercial contract, as to which enforcement is customarily limited to actions at law for breach and actions in equity for specific performance, followed by normal execution procedures. They can do so by securing, as part of the divorce decree, an order determining or disposing of the “enforcement of [their] separation agreements.”
Therefore, the precise question before us is whether, where a court enters a divorce decree that provides for the incorporation but not the merger of an agreement, has the court thereby entered “an order ... [which provides for] ... the enforcement of separation agreements voluntarily entered into by the parties____” within the meaning of 401(b), and thus preserved to itself, under the last line of Section 401(b), the power of contempt, including incarceration, for later enforcement of the agreement.
Section 401(b) does not require that an agreement be merged into the decree for it to be enforced through contempt or wage attachment. It merely requires that the court enter, as part of the decree, an order which provides for enforcement of the agreement. Where as here, the decree states that the agreement is incorporated but not merged, and the parties’ agreement also so provides, there is only one logical construction. The agreement is not merged, i.e. it survives. However, the decree does include the agreement because the agreement is incorporated there *544 in. Thus, the agreement achieves the status of a decree of court and, under the specific language of Section 401(b), the court may employ “all necessary powers, including .. .the power of contempt and .. .to attach wages” to enforce the agreement. Under this clear language, the court may employ its full contempt power, including the power to incarcerate with the opportunity to purge in order to compel performance with the agreement, which is now included in the court’s own decree.
The alternative to this view is the view that the only significance of incorporation without merger is that the agreement thereby attains res judicata effect, i.e. it is not subject to collateral attack as a contract. Under this view, the agreement 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 enforcement powers as to such an agreement would result in the court being compelled to enforce the agreement, as if it were the court’s own order, despite the fact that the court would be powerless to review the fairness of the agreement’s terms and modify them where necessary.
In fact, there need be no such concern for whether this approach will result in the enforcement of grossly unfair agreements which the court is powerless to modify so as to render them fair. Section 401(b) requires that provision for enforcement of such agreements be included in the decree only after a full hearing has been conducted, and requires that enforcement provisions in the decree relate only to agreements voluntarily entered into. Thus, there need be no concern that the court’s contempt powers will be employed to enforce agreements that are so grossly unfair as to be unconscionable or that are otherwise unenforceable, i.e. on grounds of fraud, mistake or the like. Presumably, all such objections to the agreement will be fully aired and resolved in the “full hearing” that the Code requires. In the instant case, for example, the enforceability of this agreement and husband’s ability to pay under it have been the subject of numerous hearings.
*545 There is equally no difficulty arising from the fact that changes in circumstance between entry of the decree and the petition for contempt may render it inequitable for the court to enforce the agreement for the full amounts required thereunder. If such a situation would arise, the court could not grant the petition for contempt since the fundamental requirements of civil contempt, i.e. that the alleged contemnor has willfully failed to comply and is presently capable of paying the amount necessary to purge himself of his contempt, would not be fulfilled. Under such circumstances, a finding of contempt and certainly the imposition of the sanction of incarceration would constitute an abuse of discretion.
Perhaps the best indicator of the overall fairness of the approach I suggest is the fact that the legislature has recently amended the Divorce Code to allow for a similar result. Effective February 12, 1988, the Divorce Code was amended to include the following new provision:
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. (b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (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.
Pa.Stat.Ann. tit. 28, § 401.1 (Purdon 1988). Further clarification of the powers of the court in enforcing such agreements is found in new section 401(k), which specifically *546 provides that where a party fails to comply with an agreement as entered into by the parties, after hearing, the court may find such party in civil contempt and may incarcerate him/her for up to six months. Id. § 401(k).
As to modifiability, Section 401.1 preserves to the court the ability to modify child support, visitation or custody, areas where the ability of the court to ensure that the child’s best interests are served has always been regarded as being of paramount importance.
As to the remaining issues between the parties to a divorce, like property division and alimony, the court will not have the power to change the parties’ agreements unless the parties specifically confer such power on the court.
As to enforcement of such agreements, regardless of whether the court can modify a particular aspect of an agreement or not, the agreement will be enforceable by all of the means available to a court in enforcing its own orders under the Divorce Code, including attachment of wages and civil contempt, unless the parties expressly agree that such enforcement powers will not be available in the event of a default under their agreement.
Thus, the legislature itself appears not to be concerned about the propriety of a court using its contempt powers, including incarceration where necessary, to enforce obligations pursuant to private agreements, even where certain terms of such agreements are not subject to modification by the court. Presumably, the legislature is content to rely, as am I, on the just and fair exercise of discretion by our trial courts in deciding when and if contempt and/or incarceration, is appropriate.
In addition to the foregoing analysis of the Divorce Code in support of the power of the court to employ civil contempt, including the sanction of incarceration, to force compliance with an agreement that is incorporated in a court decree, I also find support for the court’s exercise of its contempt powers in this situation in the law of enforcement of support and contempt in general. Civil contempt is *547 generally a means of compelling performance with a court order or decree. Barrett v. Barrett, 470 Pa. 253 , 368 A.2d 616 (1977). Even prior to the enactment of the Divorce Code, the use of civil contempt, including the sanction of incarceration, to enforce support obligations under support orders was well-established. Id. Moreover, in 1984, this court confirmed the propriety of using civil contempt and the sanction of incarceration to enforce support obligations arising from private agreements that were incorporated into court decrees. Hopkinson v. Hopkinson, 323 Pa.Super. 404 , 470 A.2d 981 (1984). In Hopkinson , we affirmed a trial court order finding a husband in contempt of his support obligation under a consent decree, which incorporated by reference the terms of the parties’ support agreement, and directing that husband be incarcerated on weekends until he purged himself of his contempt. In doing so, we correctly stated:
It is clear that the husband’s flagrant and willful disregard of the lower court’s orders in this matter, by his inaction in fulfilling his duties of support, justify his adjudication of contempt. So too, his imprisonment on weekends, until he purges himself of contempt, is a proper sanction to be imposed by the lower court for this civil contempt. To hold otherwise would render the Court of Common Pleas powerless to effectively implement its directives while, at the same time, allow the husband to escape his obligations under a valid, counselled separation agreement.
Id., 323 Pa.Superior Ct. at 412, 470 A.2d at 985 .
In the instant case, the trial court’s use of civil contempt and incarceration was even more justified than the action of the court in Hopkinson . Here, the trial court’s contempt adjudication was employed not only to compel performance of husband’s obligations pursuant to his agreement, which was specifically incorporated into the divorce decree in a manner consistent with Section 401(b) of the Divorce Code, but also to compel performance with two of the court’s own prior orders; one directing specific performance of the *548 agreement and the other finding husband in contempt and ordering him to pay accrued arrearages and make future payments. The use of the full gamut of contempt powers to enforce a support obligation under such circumstances is not only appropriate but is one of the most necessary and effective uses of contempt. Without it, the trial court is effectively powerless.
The majority would not only reject my analysis of the significance under the Divorce Code of incorporation without merger of an agreement, but would also reject Hopkinson as correct alternative authority for the use of civil contempt with incarceration to enforce a support agreement incorporated into a court decree. The majority would, in fact, overrule Hopkinson .
The majority’s primary difficulty with the Hopkinson decision is apparently not that the court affirmed a finding of civil contempt, but that the court also affirmed the incarceration of the appellant until he had purged himself. The "majority objects to this aspect of Hopkinson on the basis of Colburn v. Colburn, 279 Pa. 249 , 123 A. 775 (1924). The majority construes Colburn as a determination by the Supreme Court that a court of equity lacks the power to incarcerate for failure to comply with an order directing specific performance of a separation agreement providing for support payments and thus as a bar to the incarceration approved in Hopkinson . The majority notes that Colburn was decided under the Act of July 12, 1842, P.L. 339. Although the majority recognizes that the Act of July 12, 1842 was repealed by the Judiciary Act Repealer Act in 1978, the majority states that Colburn nevertheless has continuing vitality under present statutory law, namely Section 5108(a) of Title 42, which the majority believes to be a substantial reenactment of the Act of July 12, 1842. The majority also cites to Silvestri v. Slatowski, 423 Pa. 468 , 224 A.2d 212 (1966) and Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1 , 253 A.2d 263 (1977) as examples of cases where the Supreme Court has more recently declined to modify the holding of Colburn .
*549 I disagree with the majority’s characterization of the holding in Colburn , with its analysis of the statutory basis underlying Colburn and with its application of Colburn to the instant case. There is a major distinction between the instant case and Hopkinson , on the one hand, and Colburn on the other. In both this case and Hopkinson , the issue is whether a court may impose the sanction of incarceration to enforce support obligations arising under a separation agreement which has been ordered specifically performed and has been incorporated into a decree of the court when the court finds the defaulting party in civil contempt. In Colburn , the separation agreement was not incorporated in any decree and there is no discussion of the court’s powers upon finding contempt, whether civil or criminal, because there was no finding of contempt. If in fact the lower court in Colburn had found the husband in contempt, presumably the majority would agree that the court had the power to do so, since the majority says that it agrees with the Hopkinson lower court’s finding of contempt and only disagrees with its use of incarceration with a purge as a sanction for the contempt.
Colburn involved only a separation agreement providing for support, as to which the wife had obtained an order of specific performance. When husband still did not pay, wife “petitioned] for [husband’s] attachment.” Colburn, 279 Pa. at 250 , 123 A. at 776 . The trial court refused. Thus, on appeal, the sole issue was whether, where a court of equity had ordered that a separation agreement be specifically performed, that court could then enforce its order by issuing a writ of attachment for the arrest of the defaulting party. The Supreme Court affirmed the trial court’s refusal to attach the husband under the Act of July 12, 1842, which prohibited arrest or imprisonment of any person through the civil process of a court in any proceeding instituted for the recovery of money due on any judgment or decree founded upon a contract. Perhaps this is why the Hopkinson court, which was reviewing a civil contempt adjudication directed at enforcement of a court decree, did not discuss Colburn. Colburn is not directly apposite.
*550 I also disagree with the majority’s interpretation of the statute , underlying Colburn , the Act of July 12, 1842, and of present statutory law. Neither the Act of July 12, 1842 nor present statutory provisions prohibit incarceration for civil contempt in a case like the one sub judice. The Act of July 12, 1842, codified at 12 P.S. § 257, prohibited only the arrest or imprisonment of a person in any suit for the recovery of money on a judgment or decree founded upon a contract. The statute does contain an exception to this rule, however, which the majority does not mention. The statute permitted arrest or imprisonment “in proceeding, as for contempt, to enforce civil remedies____” Since Colburn itself did not address such a contempt adjudication, the Colburn Court did not address this aspect of the statute.
Moreover, the Act of July 12, 1842 was 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 Section 5108(a) of the Judiciary Code. 42 Pa.Cons.Stat.Ann. § 5108 (Purdon 1981). I find no support for this view.
Section 5108 is generally entitled “Imprisonment for debt.” Subsection (a), quoted by the majority, is 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 Act Repealer Act of 1978 specifically do not provide that Section 5108(a) is derived from any prior act. It would appear to be a new provision, deriving solely from the constitution itself.
Subsection (b) of Section 5108, not quoted by the majority, adds a “statutory restriction” on imprisonment for 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 42, Section 832, not from the Act of July 12, 1842 which was considered in Colburn . In fact, the Disposition Tables *551 reveal that the portion of the Act of July 12, 1842 relied upon in Colburn , including the section excepting contempt proceedings, was disposed of in Section 1722(a) of the Judicial Code. This grants the Supreme Court the power to prescribe rules regarding, inter alia, the conduct of the courts and all officers serving process or enforcing court orders. It does not specifically address either contempt or imprisonment for debt.
Thus, I disagree that the Act of July 12, 1842, the sole basis for the holding in Colburn , has been specifically reenacted in present statutory law.
Finally, I reject the majority’s assertion that either Silvestri v. Slatowski or Commonwealth ex rel. Magaziner v. Magaziner have any precedential value on this issue. In Silvestri, the court simply declined to consider this issue on the record before it. In Magaziner , the court disapproved the trial court’s incarceration of a husband who had failed to allow his wife to enter his home to retrieve her belongings, although he had agreed to do so. The basis for the court’s disapproval was that there was no court order of any kind addressing husband’s obligation to allow his wife into the home, and moreover that the trial court had completely ignored applicable procedural requirements in attempting to have the husband arrested. In fact, the actual holding of Magaziner is that the case was moot because the trial court had already rescinded its order directing attachment of the husband. Magaziner is simply not precedential on the issue presented herein.
In sum, I do not find persuasive any of the majority’s arguments in favor of the view that trial courts lack the power to incarcerate a party who has willfully refused to pay the support due under an agreement that has been incorporated in a court decree and ordered specifically performed, so long as the requirements for a finding of civil contempt and for imposition of incarceration with the possibility of purge are satisfied. Therefore, I conclude that Hopkinson was correctly decided and should continue to be applied.
*552 The manner in which the trial court in the instant case exercised its contempt power provides a good example to other trial courts faced with similarly recalcitrant parties. The trial court held Dr. Sonder in civil contempt and ordered him incarcerated until he paid at least $10,000 of the $41,000 in support arrearages then due. This sanction was imposed, however, only after the trial court had separately determined that the agreement was a valid and binding contract, had ordered husband to comply, and had conducted two full hearings concerning husband’s ability to pay the amounts due under the agreement. At the conclusion of the first hearing, in 1985, the court held husband in contempt but refrained from imposing any sanction, chosing instead to order husband once again to pay. It was only after this failed, and after the court held another hearing and received further testimony concerning husband’s financial condition, that the court exercised its power to hold husband in contempt and order him incarcerated until he purged himself by paying the $10,000.
In reviewing the trial court’s action, we have only one object — to ascertain whether the court erred by applying the wrong legal standard or abused its discretion by determining facts without the support of competent evidence of record. We must give great weight to the trial court’s exercise of its discretion. Commonwealth v. Hawkins, 322 Pa.Super. 199 , 469 A.2d 252 (1983). Here, there has clearly been no error. The court simply found the wife’s evidence credible and disbelieved the husband’s. In fact, three different trial court judges came to the same conclusion regarding this matter. Since it is beyond question that we, as an appellate court, do not have the power to reverse the trial court where its determination is based upon its assessment of the credibility of witnesses, I find no basis upon which to reverse the trial court’s contempt adjudication nor its decision that husband should be incarcerated until he purged himself of his contempt.
I would affirm the order of the trial court in appeal number 1343 Phi 1986.
*553 In sum, I would dispose of these consolidated appeals as follows:
Appeal No. 2259 Phi 1985 Dismiss.
Appeal No. 3025 Phi 1985 Quash.
Appeal No. 1423 Phi 1986 Affirm.
Appeal No. 1343 Phi 1986 Affirm.
. This case and its companion, Dechter v. Kaskey, — Pa.Superior Ct. —, 549 A.2d 588 (1988) are perfect illustrations. In this case, a trial judge sitting on the Common Pleas Court for Montgomery County interpreted a divorce decree that provided for the incorporation without merger of a property settlement agreement to mean that the court had no power to decrease the amount of child support due under the agreement. In Dechter , another trial judge sitting on the same court held precisely the opposite, despite the fact that the divorce decree was identical to that in this case, and reduced the child support due under the agreement by almost $100 per week.
. Effective February 12, 1988, the legislature amended the Divorce Code to eliminate this confusion. Through the addition of a new section 401.1, the substance of which is set forth below, the legislature has completely removed the significance of words like incorporate or merge when used in agreements relating to matters within the jurisdiction of the court presiding over proceedings under the Divorce Code. The power of the court to enforce and/or to modify such agreements is now settled as a matter of statutory law. The degree to which this amendment will affect pending divorce cases and agreements already executed is not an issue presented for decision in the instant case, since no party has argued that the amendment should be applied retroactively. Therefore, we must decide this case under the state of the law prior to the amendment.
. In Judge Wieand’s Concurring and Dissenting Opinion he states that he would remand this matter for consideration of husband’s Petition to Reduce and Remit his child support obligation because the Petition was never actually decided by the trial court. Judge Wieand opines that the trial court treated husband’s Petition as if it were directed at the parties’ agreement, which the court cannot modify, when in fact the Petition was directed at the aspect of the parties’ divorce decree that incorporated the parties’ agreement. Since the latter is a court order, Judge Wieand opines that it is modifiable upon a showing of changed circumstances. Thus, Judge Wieand would remand for a determination of whether husband’s circumstances have changed, presumably since entry of the decree. Judge Wieand recognizes that this result is contrary to Millstein and would, therefore, overrule Millstein .
I find this view inconsistent not only with Millstein , but also with Brown v. Hall, by which this Court is bound. In Brown , the Court was reviewing two orders — one reducing husband’s child support obligation under a court order that implemented the terms of the parties’ agreement, and the other directing specific performance of the agreement. The court held that the agreement was fully enforceable and, as the Millstein court correctly stated, could not be reduced by a later entered court order. Thus, the court affirmed the order of specific performance and vacated the order reducing the previous support order which had reflected the parties’ agreement. Brown, 495 Pa. at 643 , 435 A.2d at 863 . Justice Larsen dissented on precisely this point, stating that he would allow the reduced support order to stand, thus allowing the wife to proceed on it for the reduced amount and on the agreement for the balance. Id. (Larsen, J., dissenting). The significance of the disposition in Brown , on which Judge Wieand does not comment, is that where parties have an enforceable agreement for child support that survives a court order implementing that agreement, the court cannot later effectively reduce the support due under the agreement by reducing the support due under the order that implements the agreement.
Applying that rationale here, the trial court correctly held that it could not reduce husband's child support obligation, whether viewed as a reduction of the agreement itself or of the decree that incorporated it. If the trial court had held otherwise, it would have followed the rationale of the Brown dissent, but not of Brown . I would further note that this is precisely the resolution this court also adopted in McGough , where the court refused to modify a child support obligation arising under an agreement and a divorce decree incorporating but not merging that agreement. The court did not distinguish between modification of the obligation under the decree and under the agreement.
Nothing in the Brown opinion is contrary to this analysis. Judge Wieand correctly quotes the Brown Court as stating that it concurred "with the principle that parties to a divorce cannot restrict the court’s *541 power to modify a support order as facts, circumstances, and justice may require.” Id., 495 Pa. at 642-43 , 435 A.2d at 862 (emphasis in original). However, in so stating the Brown court clearly was not referring to a support order that merely implemented the terms of the parties’ agreement, as was the order before the Brown court. If the Brown court thought that such an order was modifiable, it would not have vacated the reduction of that order, because the trial court would have had the power to modify.
Finally, I would note that we have previously recognized this distinction between support orders reflecting the terms of private agreements and support orders separately entered after hearing, where no agreement is involved. In Casper v. Casper, 359 Pa.Super. 559 , 519 A.2d 493 (1986), allocatur denied, 516 Pa. 631 , 533 A.2d 90 (1987), we specifically stated “[o]ur courts have long recognized the difference between 'court ordered support’ and orders which include the terms of a mutually agreed upon support agreement.” Id., 359 Pa.Superior Ct. at 562-63, 519 A.2d at 495 . The difference we noted was that the former are modifiable and the latter are not. Id. Interestingly, in Casper we also noted that the major purpose of having an order implementing the agreement entered was to obtain the enhanced enforcement powers of the court as to the obligations expressed in the agreement. Thus, although the agreement is to be continued to be interpreted as a contract, and not modified upon a showing of changed circumstances, it could be enforced as a court order. Id., 359 Pa.Superior Ct. at 563-65, 519 A.2d at 496-97 . This is a subject which is discussed at greater length in the section of this opinion addressing enforceability, infra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746742. Public record. Not legal advice.