Dechter v. Kaskey

BECK, Judge,

concurring and dissenting:

This is an appeal from an order of the Montgomery County Court of Common Pleas reducing husband appellee’s child support obligation from $235 per week to $150 per week plus $25 per week in payment toward arrearages.

Although the record as transmitted to this court is in a state of disarray, the facts pertinent to the issue on appeal *51 can be ascertained and stated as follows. The parties were married in 1969 and separated in 1982. It would appear that wife first filed a complaint seeking child support in July 1982 and thereafter attempted to conduct discovery concerning husband’s financial condition. The record contains a report of a domestic relations officer dated February 22, 1983 indicating that husband did not appear at a hearing before that officer and that the facts were as yet so undeveloped that the officer could not make a recommendation as to support. However, on May 3, 1983 the Montgomery County Court of Common Pleas, on recommendation of a master, entered a temporary child support order directing payment of $225 per week, “plus payment of mortgage on family dwelling” and $25 per week toward arrearages. The order states that it is to be retroactively effective to July 22, 1982.

On June 28, 1983, a new order providing for $250 per week in spousal support and $220 per week in child support was entered. Husband was also ordered to pay dental and medical expenses and to pay $30 per week toward arrearages.

Wife thereafter continued to attempt to conduct discovery concerning husband’s financial situation. Numerous contempt proceedings initiated by wife followed, with several bench warrants being issued for husband’s arrest for noncompliance with his support obligation.

On April 23, 1984, husband filed a petition to modify the June 28th order and a hearing on his petition was scheduled. Prior to the hearing, however, Judge Brown of the Montgomery County Court entered an order dated July 10, 1984 directing husband to pay $150 per week in child support and indicating that a full hearing on the matter was to be scheduled.

The hearing on husband’s petition to modify was conducted on November 21, 1984. No evidence was taken. In lieu thereof, counsel for both parties informed presiding Judge Brown that the parties had come to a verbal agreement as to all issues, including their divorce, custody of their chil *52 dren, equitable distribution of their property and child support. Counsel stated this agreement on the record at length. We are concerned only with the child support aspect of this agreement. As to this, the parties agreed that husband would pay $200 per week retroactive to November 1, 1984, would pay all arrearages then due under Judge Brown’s July 10, 1984 order, and that effective January 1, 1985, husband would pay $235 per week. Counsel stated that the parties agreed that this obligation would be entered as a court order and that the parties would execute, as promptly as possible, a written agreement including these terms. At the end of the hearing, Judge Brown solicited from both husband and wife a statement that they understood and consented to the terms of this “agreement”.

We find nothing in this record to indicate that any order reflecting the parties’ oral agreement was ever entered. The agreement was merely stated on the record at the November 21, 1984 hearing.

Following this hearing, and presumably while the parties’ counsel undertook to draft and secure execution of the parties’ agreement in written form, wife continued in her efforts to secure husband’s compliance with his support obligations. Once again, at least one bench warrant had to be issued in order to secure compliance. Finally, on September 5, 1985, the parties’ final separation agreement was fully executed and effective. It contained the following language:

In the event either Husband or Wife at any time hereafter obtain a divorce in the cause presently pending or hereafter pending between them, this Agreement and all of its provisions shall be incorporated, but not merged, into any such judgment for divorce, either directly or by reference. The court on entry of the judgment for divorce shall retain the right to enforce the provisions and the terms of this Agreement. This Agreement shall not be modified or annulled by the parties hereto except by *53 written instrument, executed in the same manner and with the same formalities of this Agreement.

On September 16, 1985, the parties were divorced. The divorce decree provided that the parties’ Agreement was incorporated but not merged into the decree.

Husband thereafter continued to fail to pay the required amounts of child support and wife continued to attempt to enforce husband’s obligation. Numerous bench warrants were issued.

On February 25, 1986, husband filed a petition to modify an order of support allegedly dated July 1, 1985, alleging a change of circumstances. As indicated above, no such order exists. In fact, at the July 10, 1986 hearing on husband’s petition to modify, counsel for husband, although stating that she “thought” such an order had been entered, admitted that she had no copy thereof. The court also did not have a copy and the record before us contains no such order.

Thus, at the time of husband’s petition to modify, his child support obligation was reflected in three places — first, in the parties’ oral agreement set forth in the transcript of the November 21, 1984 hearing before Judge Brown; second, in the parties’ written agreement dated September 5, 1985; and third, in the parties’ divorce decree into which the parties’ agreement was incorporated but not merged. There was no child support order entered by any court after a full hearing on the merits. The hearing that in fact was held was only that conducted on November 21, 1984, concerning the parties’ agreement. Notably, husband has never challenged the validity or enforceability of that agreement.

The trial court granted husband’s petition to modify, apparently on the basis of two mistaken assumptions, one factual and one legal. First, the court assumed that it was acting on a support order entered on July 1, 1985 after a full hearing. The order on appeal specifically directs that “the previous support order, dated the 1st day of July, 1985, ... is hereby modified....” Thus, the trial court errone *54 ously acted upon a non-existent order. Second, the trial court supported its action based upon an erroneous interpretation of the law relating to the modification of support obligations arising from private agreements incorporated but not merged into orders or decrees of court. The trial court held that it had the power to modify husband’s obligation under our decision in Tokach v. Tokach, 326 Pa.Super. 359 , 474 A.2d 41 (1984), where we held that an agreement that is incorporated into a divorce decree is deemed merged therein and the obligations expressed in the agreement become fully modifiable. This resolution ignores the clear intent of the parties to this dispute and is contrary to the principles enunciated in Brown v. Hall, 495 Pa. 635 , 435 A.2d 859 (1981), Millstein v. Millstein, 311 Pa.Super. 495 , 457 A.2d 1291 (1983), and McGough v. McGough, 361 Pa.Super. 391 , 522 A.2d 638 (1987).

As I have opined at length in this case’s companion, Bonder v. Sonder, the intent of the parties’ is the central issue in determining whether a child support obligation expressed in the parties’ child support agreement will survive the entry of a divorce decree that incorporates that agreement. Here, as in McGough, supra, the parties’ intent is clear. Their agreement states that it shall be incorporated but not merged into the judgment in their divorce action. The divorce decree, from which no appeal is taken, states that the agreement, although incorporated, is not merged. In other words, the obligations the agreement imposes survive the entry of the decree and cannot be modified downward by the court.

Therefore, I would reverse the order of the trial court reducing husband’s child support obligation and deny husband’s petition to modify. 1

. I note that although the majority addresses the manner in which husband’s support obligation can be enforced, and concludes that remedies like attachment of the person are unavailable, in fact no issue regarding enforcement of husband's obligation is before us. This appeal raises only the question of modification and our discussion should be limited to that issue.