Trumpp v. Trumpp

• Decision Date: 10 March 1986
• Citation: 351 Pa.Super. 205,505 A.2d 601
• Parties: Betty TRUMPP, Appellant, v. Stanley TRUMPP.
• Court: Pennsylvania Superior Court

Page 601

505 A.2d 601

351 Pa.Super. 205

Betty TRUMPP, Appellant, v. Stanley TRUMPP.

Superior Court of Pennsylvania.

Submitted Oct. 23, 1985.

Filed Dec. 27, 1985.

Reargument Denied March 10, 1986.

Peter J. Hill, Asst. Public Defender, Bloomsburg, for appellant.

Michael J. Irey, Berwick, for appellee.

Before ROWLEY, HESTER and LIPEZ, JJ.

HESTER, Judge:

The question raised by this appeal is whether wife-appellant can assert the validity of a separation agreement containing a provision for child support when she had failed to raise such a defense in prior support modification proceedings. The lower court held that she had waived such an argument by failing to demand adherence to the terms of the agreement in previous actions, and reduced husband-appellee's support obligation below the amount specified in the agreement. We disagree and, for the following reasons, we reverse.

On April 17, 1980, the parties, who were at that time married and residents of New York, entered into a separation agreement for the disposition of their respective property rights and for the custody and support of their two minor children. Specifically, the agreement provided that appellant would retain custody of the children and appellee would pay $80 per week for their support and $20 per week for appellant's support. The agreement further stipulated that the obligations set forth therein would survive and would not merge into a subsequent divorce decree, and that it could be enforced independently of such a decree.

Approximately one year later, appellant filed a petition for support in Luzerne County, alleging that appellee ceased making support payments as of September, 1980. An order was thereafter entered on June 22, 1981, directing appellee to pay $150 per month for two months and thereafter $350 per month for the support of appellant and her two children. ¹

Alleging changed circumstances, appellee thereafter filed a petition to modify the order, which was granted on September 23, 1982. That order reduced appellee's support payments to $240 per month for six months and thereafter to $140 per month, plus $30 per month toward arrearages.

On October 7, 1982, appellant filed a petition for modification and appellee cross-filed. Before a hearing was held on the parties' cross-petitions, a divorce decree was entered in New York on January 9, 1984. The decree provided that the separation agreement of 1980 would survive and would not be merged into the divorce decree.

A hearing on the cross-petitions was held on February 7, 1984. For the first time, appellant asserted the applicability of the separation agreement and argued that the trial court lacked authority to set aside or reduce the amount of support called for in the agreement. The court rejected appellant's contentions and entered an order directing appellee to pay $350 per month for support of appellant and her children until January 15, 1984, when the support payments would be reduced to $100 per month. Appellant thereafter perfected this appeal.

The lower court, in its opinion, conceded the validity of the separation agreement. The elements of an enforceable separation agreement were recently discussed in Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). Therein, we ruled that a separation agreement containing support provisions precludes any later reduction in the specified amount if it is a detailed agreement covering all aspects of the economic relationships of the parties, it is not one-sided, both spouses are adequately counselled, the agreement does not merge into the divorce decree, and the amount of support provided is not inadequate. Id. at 507, 457 A.2d at 1297.

We concur with the trial court that the agreement in this case clearly meets these criteria. It is an extensive document, with twenty-eight articles covering forty-five pages. Both parties were represented by counsel and the resultant document protects the rights of each party. The support provisions cannot be considered inadequate, and the agreement covers all contingencies relating to the education and emancipation of the minor subjects. Finally, the agreement provides in precise language for a non-merger in the event of a divorce decree. ²

In spite of the agreement's facial validity, the trial court held that appellant had waived its enforceability by failing to advance that argument in earlier proceedings. The court applied contract law to this factual setting and concluded that appellant's failure to raise the enforceability of the separation agreement in the two earlier actions constituted a waiver of that defense. The court reasoned that appellant's conduct indicated an intention to relinquish her rights pursuant to that agreement, and concluded that it would be inequitable to find otherwise in light of appellee's reliance upon that waiver.

Unarguably, the application of contract law was appropriate in this instance. It is well settled that property settlement agreements between husband and wife will be enforced by the courts in accordance with the same rules of law which are used in determining the validity of contracts generally. Vankirk v. Vankirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984); DeWitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981); Schmitz v. Schmitz, 305 Pa.Super. 328, 451 A.2d 555 (1982). To that end, we must look to the terms of a contract when called upon to enforce rights pursuant thereto. The contract must be construed only as written. If an agreement...