Com. ex rel. Roviello v. Roviello
| Decision Date | 21 June 1974 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Carmella P. ROVIELLO v. Francis Anthony ROVIELLO, Appellant. COMMONWEALTH of Pennsylvania ex rel. Carmella P. ROVIELLO, Appellant, v. Francis Anthony ROVIELLO. |
| Court | Pennsylvania Superior Court |
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These appeals arise from a sentence of contempt imposed by the Court of Common Pleas of Montgomery County on September 25, 1973, on the husband, Francis Roviello, and the refusal of the court to reinstate a support order in favor of the wife, Carmella Roviello. Both appeals are a result of a support action instituted by the wife, for herself and minor daughter.
On March 30, 1973, the wife filed an original action for support in Montgomery County at a time when the parties were living together, having been married for 29 years. On May 14, 1973, the court entered a temporary order against the husband, in the amount of $90.00 per week in favor of the minor daughter. On June 29, 1973, a further hearing was held at which time the court entered an additional temporary order against the husband for $60.00 per week and use of an automobile in favor of the wife.
On July 27 1973, a further hearing was held at which time the husband orally agreed to convey his interests in the premises and an automobile to the wife, and to pay the wife's reasonable counsel fees. The property settlement was to be reduced to writing and be conditioned upon the wife securing an uncontested divorce. At the conclusion of the hearing, the court ordered the continuation of the previous $90.00 per week order for the child, and, in addition, revoked the previous order for $60.00 per week for the wife, and in its place substituted the terms of the proposed property settlement. An undated property settlement agreement encompassing the details of the July 27, 1973, order, including the transfer of additional items of personalty to the wife, all predicated upon the wife seeking a divorce within 6 months, was signed by the parties. Soon thereafter disputes arose between the parties with respect to the rights and obligations under the executed agreement.
On September 25, 1973, a hearing was held pursuant to a petition filed by the wife requesting reinstatement of the June 29, 1973, order and the finding of the husband in contempt for violation of the July 27, 1973, order, because he had not yet completed the property transfer as ordered. The court refused to honor the signed property settlement agreement, and held appellant in contempt for his refusal to comply with the required property transfer of the July 27, 1973, order. The court did not reinstate the order of June 29, 1973, in favor of the wife. The husband was jailed for seven days at the Montgomery County Prison and released upon the grant of a supersedeas by this court.
In appeal No. 1917, the appellant-husband argues that the lower court erred in sentencing him to jail, because at no time was he in violation of a valid court order because the lower court was without authority to compel him to agree to a property settlement at a support hearing. We agree with the husband's contentions and reverse the contempt order of September 25, 1973.
In appeal No. 1956, the appellant-wife contends that the court abused its discretion by revoking the June 29, 1973, order for $60.00 per week for support of the wife because no facts were alleged by the husband showing a permanent change in circumstances justifying the revocation. We agree with the wife's contentions and reinstate the order of June 29, 1973, retroactive to its date.
Appellant-husband, in appeal No. 1917, appeals his conviction for contempt for failure to carry out the terms of the order of July 27, 1973. The contempt citation arose out of the husband's refusal to convey jointly-owned property to his appellee-wife as ordered by the lower court. At the July 27, 1973, hearing, the parties agreed upon a property settlement agreement, which was reduced to writing, signed by the parties, only to be later repudiated by both the husband and the wife. By the terms of the agreement, the wife was to gain sole interest in jointly-held property upon the filing for an absolute divorce. [1] Upon the failure of the wife to file for divorce, the husband, who had already lodged the deed to the family premises with a lawyer, refused to convey the property.
The lower court, in an attempt to reach an amicable settlement between the parties, included the terms of the property settlement agreement in its order of support of July 27, 1973. [2] At the same time, the court revoked a previous order of $60.00 per week in favor of the wife. When the husband refused to convey the property described in the property settlement agreement, the court held the husband in violation of its order of July 27, 1973, and in contempt of court. In his appeal, the husband contends that he was not in contempt of the order of July 27, 1973, because the oral agreement between the parties to convey jointly-owned property, made in open court, was not the proper subject of a support order.
In our consideration of this issue, we are not concerned with the validity of the written agreement between the parties. The proper determination of the status of this document is in an action for specific performance before a court of equity. [3] See Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 53 A.2d 887 (1947). However, we are concerned with whether a court in an action for support has the power to force the parties to accept essentially the same terms of the property settlement agreement when it is in the form of an order of the court. Thus, in determining whether the lower court erroneously committed the husband to jail for contempt for failure to obey an order promulgated by the court in a support proceeding, it must first be ascertained whether the court had the power to fashion such an order.
The lower court is statutorily granted the power to '. . . order the (husband) . . . to pay such sum as said court shall think reasonable and proper for the comfortable support and maintenance of the said wife or children, or both. . . .' Act of December 6, 1972, P.L. ---, No. 334, § 1 (18 C.P.S.A. § 4322(b)). This statutory discretion has been further clarified by a voluminous body of case law. It is a well-settled maxim of Pennsylvania jurisprudence that a husband has the duty to contribute to the support of his wife. Commonwealth ex rel. Volinski v. Volinski, 180 Pa.Super. 348, 119 A.2d 648 (1956), and the duty continues until the husband can prove with clear and convincing evidence that the wife's conduct relieves him from this responsibility. Commonwealth ex rel. Korn v. Korn, 204 Pa.Super. 153, 203 A.2d 341 (1964); Commonwealth ex rel. Reddick v. Reddick, 198 Pa.Super. 111, 181 A.2d 896 (1962). The husband's duty of support is imposed by law as an incident of the marital status and the legal unity of husband and wife, Commonwealth v. Berfield, 160 Pa.Super. 438, 51 A.2d 523 (1947) (cases cited therein), and has long been considered by the state as a 'paramount' obligation.
The purpose of a support order is to determine an allowance which is reasonable and proper for the comfortable support and maintenance of the wife, Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799 (1952); Commonwealth ex rel. Milne v. Milne, 150 Pa.Super. 606, 29 A.2d 228 (1942), and is based upon the property, income, and earning capacity of the husband and the family's station in life. Commonwealth ex rel. Fryling v. Fryling, 220 Pa.Super. 68, 283 A.2d 726 (1971); Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965); Commonwealth ex rel. Whitney v. Whitney, 160 Pa.Super. 224, 50 A.2d 732 (1947).
However, a support order may not be set at such an amount as to serve as a punishment of the husband for misconduct, Commonwealth ex rel. Milne v. Milne, supra, or as a confiscation of the husband's property. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973). And although the court has the power and duty to look beyond the actual earnings of the husband and may consider his earning power and nature and intent of his property and other financial resources. Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1968), Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Super. 247, 311 A.2d 701 (1973), a support action may not serve as an action to divide or distribute the husband's estate. This court has often noted that a proceeding for support cannot be used for the purpose of securing a wife's share of her husband's estate or for the purpose of recovering property to which she might otherwise be entitled. Thus, a court is without jurisdiction in a support action to direct an accounting of funds in which the wife has an interest, Commonwealth v. Gleason, 166 Pa.Super. 506, 72 A.2d 595 (1950), to distribute the father's estate, Hecht v. Hecht, 189 Pa.Super. 276, 150 A.2d 139 (1959), or to divide the husband's estate. Commonwealth v. Gleason, Supra; Commonwealth v. Elliot, 157 Pa.Super. 619, 43 A.2d 630 (1945); Commonwealth ex rel. Milne v. Milne, Supra; Commonwealth v. Widmeyer, 149 Pa.Super. 91, 26 A.2d 125 (1942); Commonwealth v. Sherritt, 83 Pa.Super. 301 (1924).
In reviewing the record in light of these restrictions, we find the July 27, 1973, order, directing the division of jointly-owned property, to be beyond the scope of inquiry of a court in a support action. The court, in its attempt to settle the dispute between husband and wife ordered the husband to transfer his interests in jointly-owned property to the wife. In effect, the July 27, 1973, order directs the division and disposition of the husband's property,...
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