Ballestrino v. Ballestrino

583 A.2d 474, 400 Pa. Super. 237, 1990 Pa. Super. LEXIS 3383

• Court: Supreme Court of Pennsylvania
• Decided: December 6, 1990
• Docket: 02057
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant (Wife) appeals from the April 22, 1988 order entered by the Honorable Evelyn M. Trommer, which determined that a prior support order that had been incorporated in the parties’ 1986 divorce decree was modifiable. Wife also appeals from the June 20, 1989 order entered by the Honorable Jerome A. Zaleski, which granted in part the petition of appellee (Husband) to remit and reduce alimony. The effect of the latter order was to reduce Husband’s monthly obligation from $432 to $357. Wife contends that the court below erred in determining that the support order was modifiable. For the reasons set forth below, we quash the appeal from the order entered April 22, 1988, and we affirm the order entered June 20, 1989.

On April 9, 1986, Judge Trommer entered a decree and order divorcing the parties. The decree also incorporated by reference the terms of a stipulation entered into by the parties on October 15, 1985. The decree and order provides, in its entirety, as follows:

AND NOW, this 9th day of April, 1986, the Master’s Report in the above case having been duly approved, the Court by virtue of the authority vested in it by law, DECREES that GIACOMO FILIPPO BALLESTRINO AND ENRICA BALLESTRINO are hereby divorced from the bonds of Matrimony, and the said parties shall be at liberty to marry again.

AND IT IS FURTHER ADJUDGED AND DECREED, that the terms, provisions and conditions of a certain property settlement Stipulation between the parties dated October 15, 1985, and attached hereto, are hereby incorporated in 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.

IT IS FURTHER ORDERED AND DECREED that the alimony and support provisions of the agreement attached to this Decree and Order shall be incorporated into an order of the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County, No__, and all payment thereunder shall be made through the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County.

The October 15, 1985 stipulation incorporated in the decree provides in pertinent part:

Now, therefore, it is mutually stipulated and agreed as follows:

1. The Preliminary Objection of Defendant to the Complaint in Divorce Raising Questions of Jurisdiction be and are [sic] hereby withdrawn.

2. It is agreed that the Report of the Master SAMUEL C. STRETTON recommending that the Plaintiff be divorced from the Defendant on the ground of Indignities to the Person be approved by the Court conditioned upon the Plaintiff making the following payments to the persons and for the purposes designated;

(a) Plaintiff shall pay Defendant the sum of $4,000 in full settlement of arrearages for support of Defendant and her son, FABIO BALLESTRINO; $2,000 thereof to be paid upon execution of this stipulation and $2,000 thereof within 60 days after approval of the Master’s Report.

(b) Plaintiff shall pay Frank Carano, Esq. within 80 days after approval of the Master’s Report the sum of $2,000 for counsel fees due and owing by defendant to Frank Carano, Esq., and co-counsel.

(c) Plaintiff agrees to pay Defendant the sum of $482 per month from approval of the Master’s report for and during her natural life and so long as she remain unmarried.

In June, 1987, Wife instituted a contempt action against Husband for his failure to comply with the decree. As a result, the court ordered Husband to pay an additional $200 per month toward arrearages. To enforce this order, the court directed that Husband’s wages be attached.

On January 27, 1988, Husband filed a Petition to Remit and Reduce Alimony. He alleged that changes in his financial circumstances had occurred since the time the stipulation had been entered into. Specifically, Husband alleged that he had been permanently discharged from Ms employment which had paid $45,000.00 per year, and had secured other employment at substantially less pay. In addition, he had remarried and had a daughter who was two years old at the time of the filing of the petition. Following a hearing and briefing by the parties, Judge Trommer entered an order on April 22, 1988, finding that the support provisions of the decree were modifiable, and directing Wife to submit evidence of her income and expenses.

Thereafter, Judge Trommer became ill, and the matter was listed before Judge Zaleski On June 20, 1989, Judge Zaleski entered an order confirming Judge Trommer’s order and reducing Husband’s alimony payments to $857.00 per month. The reduction was based on the decrease in Husband’s income. Wife then filed the instant appeal from both the April 22, 1988 order and the June 20, 1989 order.

As a preliminary matter, we note that the appeal from the April 22, 1988 order is improper. Wife’s notice of appeal was filed on July 19, 1989, almost fifteen months after entry of the order. Thus, the appeal is untimely. See Pa.R.A.P. 902, 903. In addition, the appeal is improper because the April 22, 1988 order was a non-final order that did not end the litigation between the parties. See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc). Accordingly, we quash the appeal from the April 22, 1988 order. Our quashal of this appeal in no way affects Wife’s substantive rights, however, as her sole claim, properly presented in her appeal from the June 20 order, concerns the propriety of the conclusion that the original support order was modifiable.

The single issue presented on appeal is whether the court below erred in determining that the support provision contained in the parties’ stipulation, and incorporated in the divorce decree, was modifiable.¹ It is settled that, if a property settlement agreement containing support provisions survives as an enforceable contract, it is governed by the law of contracts. See D’Huy v. D’Huy, 390 Pa.Super. 509, 518, 568 A.2d 1289, 1293 (1990) (en banc); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc); McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987); see also Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). Thus, in such an instance, “the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible.” Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 (1988) (en banc) (construing Sonder v. Sonder, supra). If a property settlement agreement is merged into a divorce decree or court order, however, the agreement “take[s] on all of the attributes of support Orders for purposes of modification and enforcement.” Sonder v. Sonder, supra, 378 Pa.Super. at 512, 549 A.2d at 175. Such an agreement, therefore, “is no longer enforceable as a contract but is subject to the full range of modification and change permitted to court Orders under section 501(e) [of the Divorce Code, 23 Pa.Stat.Ann.]. It is also subject to enforcement provisions provided by section 503, Enforcement of arrearages.” Id., 378 Pa.Superior Ct. at 491-92, 549 A.2d at 164 (footnote omitted).

The question whether a settlement agreement should survive the divorce decree or be considered merged into the decree and subject to modification as a court order depends upon the intention of the parties. See Lipschutz v. Lipschutz, 391 Pa.Super. 537, 541-43, 571 A.2d 1046, 1049 (1990); D’Huy v. D’Huy, supra; see also Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990) (en banc) (plurality opinion); Sonder v. Sonder, supra. And, of course, the intention of the parties generally is determined by examining the terms of the agreement itself. See, e.g., Lipschutz v. Lipschutz, supra; McGough v. McGough, supra.

Appellant argues that this case is controlled by McGough v. McGough, supra. In McGough, the parties entered into a property settlement agreement that provided for support, and the subsequent decree in divorce incorporated the settlement and provided further that the agreement “shall not merge with but shall survive this Decree and Order.” 361 Pa.Super. at 393, 522 A.2d at 639. The McGough panel rejected the Husband’s claim that this agreement was modifiable, reasoning as follows:

The terms of the property settlement agreement demonstrates a clear intent on the part of both parties to enter into a binding contract. The document contains the statement “Husband and Wife now desire to settle and determine for all time their mutual property rights”. Immediately prior to the covenants providing for marital property division and support obligations, there is a statement of the parties’ intent to be legally bound____ [T]he agreement was a detailed contract covering all aspects of the economic relationships of the parties and the amount of support provided was not unfair or inadequate. Both spouses were represented by counsel and the agreement reached cannot be termed one-sided.

From the foregoing it is evident that both appellant and appellee fully intended to enter into an enforceable contract in accordance with the terms of the property settlement agreement---- Nothing suggests that this agreement was entered into with an understanding that it would later merge into a divorce decree and thereby be rendered modifiable by the courts. To the contrary, the agreement suggests that appellee relinquished valuable property rights and potential claims for counsel fees and costs in exchange for and in reliance upon certain promises made by her husband—including his promise to pay a fixed amount of child support per month.

We note further that the divorce decree, despite the arguable inconsistency, was quite explicit in stating that there would be no merger and that the property settlement agreement would survive as an enforceable contract.

Id., 361 Pa.Superior Ct. at 394-95, 522 A.2d at 640.

In the case at bar, the stipulation stated that it was the “desire of [Wife] to withdraw [her] Preliminary Objections, and to resolve other disputes between the parties.” The parties then stipulated that Wife’s jurisdictional objections would be withdrawn, and a divorce on the ground of indignities (grounds that Husband sought) should be approved by the court. In return, Husband agreed to pay Wife $4,000 in arrearages for support of Wife and her son, $2,000 for Wife’s attorneys’ fees, and monthly support of $432 “for and during her natural life and so long as she remain unmarried.” The stipulation was signed by both parties and their counsel.

At first blush, Wife’s claim that McGough governs this case appears to be persuasive. The case is similar to McGough in that the stipulation is not one-sided, as Wife withdrew her objections concerning jurisdiction and the basis for the divorce (indignities), in return for economic concessions made by Husband. Moreover, it is undisputed that both spouses were adequately counselled, and that the amount of support is adequate. In addition, the stipulation purports to resolve economic issues involving support, counsel fees, and arrearages. And, finally, as in McGough, the stipulation is silent with regard to whether it was intended to survive the decree in divorce or to merge into it, and the only reference to merger is contained in the divorce decree itself, which states that the stipulation “shall not merge with, but shall survive this Decree and Order.”

Despite these similarities, Wife’s assertion that the facts in McGough are “on all fours” with this case is overstated. Here, unlike McGough, the stipulation does not purport to be a “detailed contract covering all aspects” of the parties’ economic relationship. Moreover, there is no joint statement of the parties’ desire to determine “for all time” their property rights, and there is no separate statement of the intention to be legally bound. Finally, although the stipulation does not state that it would later merge into a divorce decree, it clearly was entered into in contemplation of the divorce decree, as the parties conditioned their obligations on the court’s approval. See para. 2, 2(a)-2(c). Thus, the stipulation here contains a far less clear indication of the parties’ intent with regard to merger and modification than did the agreement in McGough.

If Wife were correct that all that is present in this case is the parties’ silence concerning merger and the decree’s exclusion of merger, there would be little question that McGough would require a holding that the support provision is not modifiable except “in accordance with the law regulating contracts through proceedings of law or in equity.” See Sonder v. Sonder, supra, 378 Pa.Super. at 513, 549 A.2d at 175; McGough v. McGough, supra, 361 Pa.Super. at 393, 522 A.2d at 639-40. However, Husband argues, and we agree, that the court’s finding of modifiability clearly is proper when it is considered in light of Wife’s actions since entry of the decree, and the parties’ silence regarding merger.

Husband notes that in 1987 Wife instituted a contempt action against him based on his failure to pay support. As a result, the trial court ordered Husband to pay an additional $200 per month to pay off arrearages. In so doing, the court ordered that Husband’s wages be attached. As we have already noted, such relief is proper only if the support provision merged into the court order, and was not an independently enforceable contract. See Sonder v. Sonder, supra; see also Dechter v. Kaskey, supra. In light of these facts, Husband argues that:

having previously used the enforcement and contempt powers of the court and received the advantages thereby, the appellant/wife can not now claim that the said Stipulation is a contract, enforceable only as such____ The same authority by which Judge Trommer granted her requested relief in 1987 is the same authority by which Judge Trommer found the agreement to be modifiable and by which Judge Zaleski did in fact modify the Order.

Appellee’s Brief at 9.

Husband’s point is well-taken. Where the parties have been silent on the question of modifiability, and the court already has employed the vast powers of contempt and attachment to enforce a support order in favor of the other party, we cannot conclude that the court erred in determining that the order was modifiable.

We find further support for this conclusion by reference to principles of estoppel. As the panel in Lipschutz v. Lipschutz, supra, noted: “[judicial estoppel provides that a party to an action will be estopped from asserting a position inconsistent with his/her assertion or claim in a previous action, particularly if his/her contentions were successfully maintained.” 391 Pa.Super. at 547, 571 A.2d at (citing Associated Hosp. Serv. of Philadelphia v. Pustilnik, 497 Pa. 221, 489 A.2d 1149 (1981)). Here, although Wife did not “successfully maintain” in her contempt action that the support provision was modifiable, she nevertheless was successful in having the provision enforced under the Divorce Code, and she did not seek relief under contract and equity principles. In such a situation, it is not improper for the court to refuse to entertain a later claim that the support provision is governed only by contract law.²

For the foregoing reasons, we find that the court below did not err in determining that the support provision incorporated into its divorce decree was modifiable. Accordingly, we affirm the order entered June 20, 1989.

Appeal from the order of April 22, 1988 quashed. Order of June 20, 1989 affirmed.

JOHNSON, J. files a dissenting opinion.

1 . Neither party has raised a question concerning the possible retroactive effect of the 1988 amendments to the Divorce Code concerning merger and incorporation. See 23 Pa.Stat.Ann. § 401.1. Thus, we cannot consider this question. See D’Huy v. D’Huy, 390 Pa.Super. 509, 515 n. 2, 568 A.2d 1289, 1292 n. 2 (1990); see also Bell v. Bell, 390 Pa.Super. 526, 530 n. 1, 568 A.2d 1297, 1299 n. 1 (1990) (en banc) (plurality opinion by BECK, J.) (same).

2 . We are aware that the 1988 amendment to the Divorce Code allows a party to utilize the enforcement provisions of the'Code even if the parties’ agreement was not merged into the divorce decree. See 23 Pa.Stat.Ann. § 401.1(a). Under this amendment, therefore, a party’s action in seeking enforcement under the Code could have no bearing on the question whether the parties intended that their settlement agreement should survive the divorce decree. Here, however, Wife’s contempt action was instituted, and she obtained relief, prior to this amendment.