Sonder v. Sonder

• Decision Date: 29 September 1988
• Parties: Suzanne C. Shulman SONDER v. Carl R. SONDER, Appellant.
• Court: Pennsylvania Superior Court

Page 155

549 A.2d 155

378 Pa.Super. 474

Suzanne C. Shulman SONDER v. Carl R. SONDER, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 9, 1987.

Filed Sept. 29, 1988.

Catherine Miraglia-Lecky, King of Prussia, for appellant.

Howard J. Casper, Philadelphia, for appellee.

Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.

TAMILIA, Judge:

These cases were consolidated for appeal and certified to the Court en banc for review of a single issue, that being whether a property settlement agreement providing for the payment of support and incorporated into a divorce decree merged with the decree thereby becoming modifiable by the courts upon a showing of a material change in circumstances.

Suzanne Sonder and Carl Sonder were married on November 8, 1968, separated in 1982 and divorced on December 13, 1985. Two children were born of the marriage, a son M., born on May 25, 1970, and A., a daughter, born on November 28, 1973. The parties entered into a property settlement agreement (P.S.A.) on November 29, 1983, which included provisions for spousal and child support payments at the rate of $800 per week. Prior to entry of the divorce decree, the agreement was litigated and determined to be an enforceable contract (Order of March 27, 1985). Upon the issuing of the divorce decree, the agreement by its terms was to be incorporated into the decree without merging into it (Divorce Decree, December 13, 1985). The purpose for this is contested as the parties disagree as to whether it was to insure the survival of the agreement as an enforceable contract not subject to later modification by the court, or intended to become an Order of court subject to the control by the court over future payments, modified terms and enforcement. For purposes of clarity, we will consider each appeal in a separate section according to the issue presented.

A. VALIDITY OF PROPERTY SETTLEMENT AGREEMENT

The first appeal, at No. 02259 Philadelphia, 1985, is from an Order denying exceptions to the Order of March 27, which affirmed the property settlement agreement entered into by the parties dated November 29, 1983. At the time of this action in equity for specific performance of the P.S.A., it had not been merged or incorporated into the divorce decree, although a complaint in divorce had been filed by the plaintiff, Mrs. Sonder, on July 17, 1984, in Montgomery County, after which the defendant, Dr. Carl Sonder, filed a complaint in divorce in Chester County.

The complaint in equity was filed on October 16, 1984 and a hearing was set for January 28, 1985 on the equity complaint. The defendant, on Friday, January 25, 1985, filed a petition for preliminary objections nunc pro tunc and an answer to complaint in equity and new matter. On Monday, January 28, 1985, a hearing was held and, on March 27, 1985, the Honorable Albert Subers entered an Order denying appellant's petition to file preliminary objections nunc pro tunc and granted Mrs. Sonder's motion to enforce the property settlement agreement and directing appellant to comply with the terms of the P.S.A. in total. Exceptions were filed to this Order on April 8, 1985, with a petition for hearing en banc on the exceptions to the Order and a petition for leave to file additional exceptions. On June 20, 1985, argument on these exceptions was held before the en banc Court below at which time appellant moved to quash the proceedings and strike or rescind the Order of March 27, 1985. On June 20, 1985, appellant filed additional exceptions to the Order of March 27, 1985. On August 2, 1985, the trial Court en banc issued an Order denying appellant's exceptions to the Order of March 27, 1985. On August 28, 1985, appellant, Dr. Sonder, entered a praecipe for judgment and notice of appeal to perfect the instant appeal. Upon reviewing this record, we see nothing to disturb the decision by the trial court. See Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981) (court may not alter contract absent mistake or fraud without consent of both parties).

However, as to that appeal, the issue as to the validity of the agreement was rendered moot when appellant insisted the agreement be incorporated in the divorce decree, which was then accomplished by the decree dated December 13, 1985. See K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Commonwealth ex rel. Watson v. Montone, 227 Pa.Super. 541, 323 A.2d 763 (1974) (existence of actual controversy is essential to appellate jurisdiction and if event occurs rendering it impossible for appellate court to grant any relief, issue is moot). No appeal having been taken from the decree, the agreement is rendered valid and incorporation renders the issue res judicata as will be explained below.

B. CONTEMPT ACTION ON UNINCORPORATED P.S.A.

The second appeal, No. 03025 Philadelphia, 1985, flows from appellee/wife's attempt to enforce the Order of March 27, 1985 (appeal at No. 02259 Philadelphia, 1985) directing appellant to comply with the terms of the P.S.A. Appellee, Suzanne Sonder, filed a petition for contempt of the March 27th Order and, following hearing before Judge Louis Stefan, on October 22, 1985, an Order was entered on October 24, 1985 adjudicating appellant in contempt and ordering him to pay the total sum of $29,800 "forthwith" and $1,000 counsel fees and expenses of enforcing the terms of the agreement. On November 22, 1985, appellant filed a Notice of Appeal to this Court from the Order of October 24, 1985 which is the instant appeal.¹

The substance of Dr. Sonder's argument is that the trial court, in the contempt proceeding at No. 03025 Philadelphia, 1985, did not give appellant an adequate or ample opportunity to develop his defense to the contempt proceeding because appellant's counsel was in the midst of another trial; exhibits necessary for his defense, corroborating his financial situation, could not be copied for submission to the trial court and the trial court issued its contempt Order before receiving these exhibits, although he represented to counsel he would take those matters under advisement. Further, appellant alleges the court failed to follow the procedure required in adjudicating him to be in contempt. While appellant refers to case law governing contempt, contempt for support matters generally follows the procedures under Rule 1910.21 of Pa.R.C.P., Actions for Support. That is so even when the matter is ancillary to a divorce proceeding. See Pennsylvania Divorce Code, 23 P.S. §§ 401(b), 403(a), 503 and Pa.R.C.P. 1920.31(b)(1). The effect of Rule 1910.21, Civil Contempt, streamlined the five elements required by Crislip v. Harshman, 243 Pa.Super. 349, 365 A.2d 1260 (1976). See Explanatory Note-1981 to Rule 1910.21. It requires notice by petition alleging failure to comply with extended notice to defend, which will include time and place of the hearing and consequence of failure to appear. The petition must also contain facts showing a willful failure to obey the support Order (here, contempt Order). This is followed by a hearing and appropriate Order. An Order imposing sanctions shall specify the condition of which fulfillment will result in release of the defendant. Rule 1910.21(c), (d). The proceeding employed was substantially as above except the appellant alleges he did not have a full hearing, as required, to present his defense, if any.

As indicated above at footnote 1, in the Order of October 24, 1985, while a finding of contempt was entered and an Order of specific performance imposed, no sanctions were imposed, therefore, this Court is powerless to grant appellant relief on that Order since he has yet to suffer harm or penalty. We, therefore, are unable to review his allegations of failure to consider his defenses, if any, and the trial court's procedural errors in conducting the hearing. Thus our only course is to quash the appeal at No. 03025 Philadelphia, 1985 as being interlocutory.

C. INCORPORATION OF AGREEMENT INTO DIVORCE DECREE

These proceedings were moving forward on two fronts and at the point of the entrance of the divorce decree on December 13th, they converged. As stated earlier, a divorce complaint was filed by Mrs. Sonder on July 17, 1984 (reinstated September, 1984) in Montgomery County, while Dr. Sonder filed for divorce in Chester County. Appellant, in answer and counterclaim to Mrs. Sonder's divorce complaint, denied allegations of indignities and requested equitable distribution. On June 4, 1985, appellant filed an affidavit of consent under 23 P.S. § 201(c), and on June 5, 1985, appellee filed her affidavit of consent. On July 1, appellee filed a motion to transmit records under Montgomery County Local Civil Rules 1920.42(c) (conforming to Pa.R.C.P. 1920.42 and 1920.73 Praecipe to Transmit Record). This was countered by appellant's objections to the praecipe to transmit record because the praecipe contained a statement that the agreement was not to be incorporated into the divorce decree, whereas, in fact, the agreement itself contained an incorporation clause (Agreement, p 17, p. 27). Following a hearing on the objection, an Order was entered finding moot Dr. Sonder's counterclaims to the complaint filed by Mrs. Sonder and directing plaintiff to file an amended praecipe to transmit record requesting a Form 2 Divorce Decree which included an Order incorporating the P.S.A. but not merging it with the decree.

Following this Order, a decree of divorce, using Montgomery County Form 2, was entered on December 13, 1985 and signed by Judge Joseph C. Smyth. This decree was never appealed and is valid and subsisting for purposes of any further proceeding on this case.

The entry of the decree of divorce incorporating the P.S.A., unappealed from, confirms the validity of the P.S.A. and the appeal at No. 02259 Philadelphia, 1985 contesting its validity is, as stated above, therefore, moot. This is so as by his action...