Bell v. Bell

568 A.2d 1297, 390 Pa. Super. 526, 1990 Pa. Super. LEXIS 183

• Court: Supreme Court of Pennsylvania
• Decided: January 22, 1990
• Docket: 00411
• Status: Published

Opinions

BECK, Judge:

Husband-appellant and wife-appellee were divorced on February 11, 1982. Prior to divorce, the parties agreed to entry of a consent order providing for the payment of child support by husband to wife. This order was entered on November 30, 1981. On December 1, 1981, the parties executed a comprehensive agreement resolving their economic claims in anticipation of divorce. The Agreement provided, in pertinent part:

2. EFFECT OF DIVORCE DECREE

The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties.

3. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE

The parties agree that the terms of this Agreement shall be incorporated into any divorce decree which may be entered with respect to them.

4. ENFORCEABILITY AND CONSIDERATION

If the contemplated divorce is not secured as agreed upon herein, this Agreement shall be null and void and of no further force and effect. If the contemplated divorce is granted and this Agreement is approved by the Court, and orders anticipating the enforcement of this Agreement are included in the decree granting a divorce between the parties, the Court shall maintain jurisdiction over the parties and the matters that are the subject of this Agreement.

12. CHILD SUPPORT

Commencing on distribution date, Husband shall pay to Wife the sum of Four Hundred Eighty and 00/100 ($480.00) Dollars per month per child for the support of the children until emancipated.

16. HEALTH INSURANCE — CHILDREN

Husband shall provide Blue Cross/Blue Shield coverage or equivalent for the benefit of the child so long as he is obligated to contribute to their support pursuant to the provisions of this Agreement. In the event that Wife returns to work and has Blue Cross/Blue Shield or equivalent coverage, Wife shall provide such coverage for the benefit of the child concurrently with Husband's coverage.

17. CUSTODY AND VISITATION

The parties agree that custody of the said child John Harry Bell, shall be with Wife. Husband shall have partial custody____ Visitation shall be open upon proper notice. ... The terms of Custody and Visitation are subject to review by the Court in accordance with the Laws of the Commonwealth of Pennsylvania.

26. NO WAIVER OF DEFAULT

This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement.

The parties were divorced on February 11, 1982. The divorce decree stated that the Agreement “is made a part hereof”.

In 1987, husband petitioned for a reduction in child support on the ground that wife had become employed. The trial court denied the requested relief by order dated February 12, 1988. Husband appeals.

Husband argues that both the Agreement and the divorce decree evidence a clear intent by the parties that the Agreement would merge into the decree, thus becoming an order of court providing for child support which would be modifiable downward upon a showing of changed circumstances.

We disagree. Although husband has properly identified the crucial question as being what the parties intended as to the modifiability of their Agreement, we do not concur in his interpretation of the Agreement and decree.

In our opinion in the companion to this case, D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (en banc), we reiterated that the guiding principle in determining whether a settlement agreement between divorcing parties should survive the entry of their divorce decree or, alternatively, be considered merged into the decree and subject to modification as a court order, is that the intent of the parties on this issue should govern. Id., 390 Pa.Superior Ct. at 515, 568 A.2d at 1292 (citing Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988)). Thus, in D’Huy we held that where the parties to a settlement agreement have clearly and unambiguously expressed in their agreement an intent that their agreement will survive the entry of the divorce decree, and yet the decree itself says that the agreement is incorporated into the decree, the agreement survives and is not merged. It remains an enforceable contract, not subject to unilateral modification as a court order.¹

Applying this principle to the instant facts, we have no difficulty in concluding that the parties intended the Agreement to survive their divorce and that the child support provision would not be modifiable downward on a showing of changed circumstances like those alleged by husband. This intent is unambiguously expressed in the various provisions quoted above, both when read separately and in the context of the entire Agreement. The parties agreed that the Agreement was their entire agreement, intended to be the final and binding resolution of all economic claims between them at present and in the future. It specifically states that it shall “continue in full force and effect after ... [the] final decree in divorce” and will “remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement.” The child support provision contains its own termination provision. The support obligation of husband as provided in the Agreement is to terminate only upon emancipation of the children.²

Reading the Agreement as a whole, we further find evidence that where the parties wished to permit court modification of their Agreement, they specifically so stated. For example, as to custody and visitation, the parties expressly agreed that those terms would be subject to review by the court under the laws of this Commonwealth. There is no such language relative to child support. Moreover, the Agreement contemplated that wife might return to work. If she did, the parties agreed that she would provide medical coverage for the parties’ child to the extent that she had coverage through her employment. There is no indication that the parties also intended husband’s support obligation to be modifiable upon wife’s employment, as it might be if the Agreement was subject to modification by the court.

Standing against all of the foregoing evidence that the parties did not intend to permit court modification there is only the language of both the Agreement and the divorce decree providing for incorporation of the Agreement into the decree. However, the parties’ intent in agreeing to this is also clear. By incorporation the parties intended only that the Agreement would remain enforceable by the court after divorce. This is the only reasonable interpretation to be accorded to paragraph 4, quoted above, which provides that if the parties are divorced and “orders anticipating the enforcement of this Agreement are included in the decree”, i.e. if the decree incorporates the Agreement, then the court shall retain jurisdiction over the Agreement.³

We find no ambiguity. The Agreement survives as an enforceable contract. Thus, the trial court did not err in refusing modification downward of husband’s support obligation.

Affirmed.

Beck, J.’s majority Opinion is joined by CIRILLO, President Judge, and CAVANAUGH and ROWLEY, JJ. TAMILIA, J., files a concurring statement. BROSKY, J., files a dissenting opinion and is joined by POPOVICH, J. M0NTEMUR0, J., files a dissenting opinion and is joined by JOHNSON, J. JOHNSON, J., files a dissenting opinion and is joined by MONTEMURO, J.

1 . We do not reach the question of whether the amendments to the Divorce Code concerning merger/incorporation, effective February 12, 1988, should be retroactively applied to this case. Although we requested supplemental briefing on this issue to the court en banc, on further consideration we find that since neither party raised the issue on appeal, this case is an inappropriate vehicle for deciding such an important issue.

2 . We note that although the Agreement refers to “children" at various places, the parties have only one child.

3 . Husband also argues that the divorce decree constitutes a modification of the Agreement making the latter modifiable by the court. This argument may be summarily dismissed. The decree cannot be construed as a modification of the Agreement simply because it does not change any term of the Agreement. The decree is perfectly consistent with the Agreement — both say that the Agreement is incorporated into the decree. We hold that, under the circumstances of this case, incorporation does not result in merger.