Dechter v. Kaskey , 379 Pa. Super. 45 ( 1988 )

TAMILIA, Judge:

This is an appeal from the Order of the Montgomery County Domestic Relations Court, reducing the amount of support for minor children, fixed by a separation/property settlement agreement and a support Order at $235 per week, to $150 per week, plus $25 per week on account of arrearages. The Court en banc considered this case at the same time and in conjunction with Sonder v. Sonder (E5009/87) as the issues are the same (in part) and involve opposite interpretations by two judges of the Montgomery County Court of a court-approved Decree and Order Form.

The issue presented in this appeal is whether the court had jurisdiction and authority to modify a support agreement which was incorporated but not merged in a subsequent decree of divorce. Briefly, the facts in this case are as follows.

The parties were married on April 13, 1969 and, from this union, three children were born. As a result of marital discord, the parties separated in 1983 and, on September 5, 1985, they entered into a 24-page counselled property settlement/separation agreement which provided for support for the children in the amount of $200 per week, retroactive to November 1, 1984 (until each is emancipated), and $235 per week as of January 1, 1985. Paragraph 25 of the agreement provided the agreement would not be modified or annulled by the parties thereto except in the same manner and with the same formalities of the agreement. Shortly thereafter, a divorce decree and Order were entered on September 16, 1985, which provided:

[Tjerms, provisions and conditions of a certain property agreement between the parties, dated September 5, 1985, (attached as exhibit “A”) is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth herein at length. Said agreement shall not merge with but shall survive this Decree and Order.

Subsequently, appellee fell in arrears on the payment of support and, after issuance of six bench warrants for failure to pay, on February 26, 1986, he filed a petition to modify “Order of July 1, 1985.” ¹ The petition was heard before a Master in Support and was dismissed. On July 10, 1986, a hearing on exceptions to the master’s finding and decision were heard before the Honorable Gerald Corso. Following a hearing during which extensive testimony was taken, an Order was entered on July 14, 1986, granting appellee’s petition and reducing the child support Order of July 1, 1985 from $235 to $150 per week.

The Order of July 1, 1985, which was identical in amount and provisions as contained in the agreement of September 5, 1985, appears never to have been vacated and continues in effect. The agreement of September 5, 1985 makes no mention of that Order and makes no provisions for its suspension or supersedance by the agreement. The agreement was entered into after several negotiations relating to payment (or nonpayment) of the support Order. In Judge Corso’s Opinion, he referred to both the separation agreement and the support Order of July 1, 1985 and purported to reduce both, at least by implication.

Dealing with each separately, we affirm the reduction of the support Order of July 1, 1985 and vacate the reduction of the amount of support under the support agreement. The original permanent Order of support was entered on June 28, 1983, and there was considerable activity on that Order to bring about enforcement until the time of the agreement.

The record and evidence sustain the court’s finding that due to a change of circumstance, including liquidation of appellee’s prior business and reduced income in his present business (Slip Op. p. 2), he is unable to pay the amount of support ordered on July 1, 1985. We find no abuse of discretion in the trial judge’s action and, therefore, he must be affirmed. Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); D’Arciprete v. D'Arciprete, 323 Pa.Super. 430, 470 A.2d 995 (1984) (lower court’s determination not to be disturbed absent clear abuse of discretion).

As to the modification of the agreement which the court lumped together with the support Order, the court’s determination that the agreement was merged into the decree and, therefore, is modifiable, is in error. Since we have dealt exhaustively with this issue in Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (Opinion by Tamilia, J.), which concerns the “Decree and Order, Form 2” of the Montgomery County Court, our determination that the agreement does not merge, pursuant to that form of decree, is controlling here. It is interesting to note that Judge Salus of the Montgomery Court, in Sonder, found he had no jurisdiction to entertain a petition for modification because the agreement was not merged, whereas Judge Corso, in the same court interpreting the same decree and Order form, found it did merge and a petition for modification could be entertained.

Having decided the support Order could be modified but the agreement could not, we will consider briefly the effect of our holding.

Pursuant to Sonder, we held both agreements and support Orders under certain circumstances could be given independent effect. Obviously, double recovery cannot be allowed on both the agreement and the support Order. To the extent the agreement is not completely satisfied by giving credit for the amount paid pursuant to the support Order, a debt is accumulated which may be recovered in an action of assumpsit or in equity. However, as we stated in Sonder, the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible. In this respect, by retaining the validity of the agreement, we do not offend Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983) (an agreement for child support may not be reduced by the court, although an Order to increase support is permissible when circumstances warrant) and Brown v. Hall, 495 Pa.Super. 635, 435 A.2d 859 (1981) (unless an agreement is merged into the divorce decree, it may not be modified by the court). By holding the agreement specifically rules out merger, we distinguish it from Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984) and rule in accordance with McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985) and Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985). Appellee is incorrect in alleging incorporation of an agreement requires enforcement as a support Order but does not permit modification. To do so would permit attachment of the person for a debt arising out of contract, which is impermissible. See Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969); Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966); Colburn v. Colburn, 279 Pa. 249, 123 A. 775 (1924); Pierce’s Appeal, 103 Pa. 27 (1883).²

The portion of the trial court’s Order modifying the support Order of July 1, 1985 is affirmed; that portion of the Order, modifying the agreement of September 5, 1985, is vacated.

Jurisdiction relinquished.

CAVANAUGH, ROWLEY and WIEAND, JJ., concur in the result. BECK, J., concurs and dissents.

1 . This case originated with a temporary support Order entered by Judge Tressler on July 22, 1982, with numerous modification Orders, attachment proceedings and court appearances relating to support from that time to the present. Due to the chaotic state of the record as transmitted by the lower court, we cannot verify from the record an Order dated July 1, 1985, but must accept the existence of such an Order from the court’s use of that date and the fact this was the date used by appellee in his petition to modify. At a hearing on November 21, 1984, the parties agreed on the record to enter an Order in the amount of $235 per week for support of the children as of January 1, 1985. This appears to be the Order on which the parties and the court are acting upon.

2 . We take note that while it has no effect on this agreement, the amendment to the Divorce Code, Act. No. 1988-13, effective February 12, 1988, 23 P.S. 401.1, Effect of agreement between the parties, provides: “(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." This is a badly needed improvement as it states in statutory language that as to children, the needs of the children and the circumstances of the parents are irrevocably intertwined and they must be dealt with according to the realities of changing conditions and not according to nonmodifiable arrangements made at the time the agreement was entered.