Hogan v. Hogan

72 Pa. D. & C.2d 512, 1974 Pa. Dist. & Cnty. Dec. LEXIS 42
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJune 21, 1974
Docketno. 2477 of 1972
StatusPublished

This text of 72 Pa. D. & C.2d 512 (Hogan v. Hogan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogan v. Hogan, 72 Pa. D. & C.2d 512, 1974 Pa. Dist. & Cnty. Dec. LEXIS 42 (Pa. Super. Ct. 1974).

Opinion

SUGERMAN, J.,

Plaintiff filed her complaint in equity, seeking enforcement of a judgment entered theretofore against her husband, defendant, representing arrearages accrued upon an order for support of plaintiff, also made previously by this court. Plaintiffs prayer for relief requests a seizure and sale of defendant’s interest in real property owned by the parties as tenants by the entireties, and further asks that the proceeds of such sale, after payment of plaintiffs judgment, be held by a trustee and applied to future payments of support as the same fall due under the terms of the support order.1

[514]*514Defendant, by way of answer, new matter and counterclaim, denies many of the averments of the complaint, claims of plaintiff a sum equivalent to one-half of the fair rental value of the premises during the period the same was occupied exclusively by plaintiff, and requests a partition of the entireties estate.

From testimony adduced at the hearing, the chancellor makes the following

FINDINGS OF FACT

1. Plaintiff, Lottie C. Hogdn, resides at Chadds Ford, Pennsbury Township, Chester County, Pa., and defendant, Thomas P. Hogan, resides at Devon Apartments, 2401 Pennsylvania Avenue, Wilmington, Del.

2. Plaintiff and defendant were married on May 20, 1936, which marriage yet subsists; and defendant separated from plaintiff in September 1966 and has lived separate and apart from her since that date.

3. On June 13, 1950, plaintiff and defendant, as tenants by the entireties, acquired title to premises known as “Fair Acres,” situate in the Village of Chadds Ford, Pennsbury Township, Chester County, Pa., more particularly described in a deed recorded in the Office of the Recorder of Deeds of Chester County, Pa., in Deed Book Z-23, Vol. 572, at pages 164, et seq.; the said premises are yet owned by the parties as tenants by the entireties, and plaintiff resides thereon and has so resided exclusively since defendant’s separation in September 1966.

4. Following defendant’s separation, plaintiff obtained an order for her support, entered against defendant by this court on April 5, 1967, at Sep[515]*515temberTerm, 1966, no. 152, directing defendant to pay the sum of $100 per week for the support of plaintiff.

5. As the result of arrearages accruing upon the said order for support, plaintiff caused a judgment in the sum of $13,600 to be entered in the Office of the Prothonotary of Chester County, Pa., in her favor and against defendant, which judgment remains unpaid.

DISCUSSION

Plaintiff, by her complaint in equity, seeks to enforce a judgment in the sum of $13,600 entered against her husband, defendant, representing arrearages accrued upon an order for support made by this court in an earlier proceeding, and further seeks payment of such sums as may in the future fall due under the terms of the said order for support from the proceeds of the sale of defendant’s interest in entireties real estate.

Plaintiff endeavors to enforce the judgment so obtained against real estate acquired by the parties in 1950 and owned by them as tenants by the entireties, and invokes the provisions of the Act of May 23, 1907, P.L. 227, sec. 1; April 27, 1909, P.L. 182, sec. 1(1); December 15, 1955, P.L. 878, sec. 1, 48 P.S. §131, and the Act of May 23, 1907, P.L. 227, sec. 2; April 27, 1909, P.L. 182, sec. 1[2]; July 21, 1913, P.L. 867, sec. 1; December 15, 1955, P.L. 878, sec. 2, 48 P.S. §132 (hereinafter collectively called the “Act of 1907”).

Section 1(1) of the Act of 1907, 48 P.S. §131, generally authorizes an action in equity to enforce the substantive rights of a wife and children to support, and provides a remedy in addition to the remedies statutorily provided on the law side of the court: Martino v. Martino, 93 Montg. 236 (1970).

[516]*516Section 1[2] of the Act of 1907, 48 P.S. §132, provides that proceedings seeking a decree for the support of a wife or children, as authorized by section 1(1), “may be had against any property, real or personal of said husband”2 (emphasis supplied), and further provides that the court may direct the seizure and sale of such property to provide the funds necessary for such support: Drummond v. Drummond, 402 Pa. 534, 167 A. 2d 287 (1961).

Thus, the Act of 1907, asserted as the basis of plaintiffs action at bar, creates a remedy in equity enabling a wife to obtain a decree (order) of support. But plaintiff here is already armed with a decree (order) of support and actually seeks only to enforce it, or more accurately, seeks to execute upon a judgment obtained as the result of noncompliance with such previously obtained decree. Rather than grounding her request upon the Act of 1907, which provides neither the mechanics of execution against entireties property, nor a scheme of distribution following execution thereon, plaintiff properly should look to the statutory provisions of companion acts relating to the enforcement of decrees already obtained, whether in equity or atlaw.

Section 1 of the Act of June 11,1913, P.L. 468, 48 P.S. §133 (hereinafter, the “Act of 1913”), permits the court to enforce compliance with such orders and judgments by issuing its writ of execution against any entireties real estate, whereupon the same is to be sold by the sheriff and, after satisfaction of such order or judgment, the proceeds of such [517]*517sale remaining are to be divided equally between husband and wife.

The remedy, the manner of enforcement and the method of distribution are thus clear, and the task of the chancellor would be relatively simple if the Act of 1913 were the sole statutory provision on the subject. Unfortunately, it is not.

We note also, as we must, section 1 of the Act of May 24, 1923, P.L. 446, 48 P.S. §137 (hereinafter, the “Act of 1923”), providing, in material part, that such decree for support as theretofore obtained by a wife shall be entered as a judgment, that execution on such judgment may issue against entireties real estate, and that a salq may be ordered to satisfy the judgment so entered. Unlike the Act of 1913, however, section 2 of the Act of 1923, 48 P.S. §138, provides that the wife shall be entitled out of the proceeds of sale, “to such sum of money as represents her share in such property, based on the proportionate part of the original purchase money furnished by her for the purchase of such property.” (emphasis supplied). Under this section, the wife may petition the court, prior or subsequent to the sale on execution, setting forth her claim against the proceeds.

It is at once apparent that, at least superficially, there exists a marked inconsistency between the Act of 1913, and the Act of 1923 concerning the proportionate share of the net proceeds to be distributed to the wife.

Such disparity has been recognized by at least one tribunal in the Commonwealth. In Popkin v. Popkin, 1 Bucks 218 (1950), the plain tiff-wife filed a petition prior to the instant action, seeking the entry of a judgment on unpaid arrearages accrued upon a decree awarding her alimony pendente lite, [518]*518and further seeking execution thereon pursuant to the provisions of the Act of 1923, and the Act of May 10, 1921, P.L. 434, sec. 1, 48 P.S. §136.3

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Bluebook (online)
72 Pa. D. & C.2d 512, 1974 Pa. Dist. & Cnty. Dec. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogan-v-hogan-pactcomplcheste-1974.