Brief for Successfully Appealed Support Case


The following is a writing sample for an appeal to the Pennsylvania Superior Court in a support/divorce matter the in which the office was successful in reversing the trial court.


The client was the wife. When wife divorced husband, husband agreed to pay her $200 a week for the support of the parties three children. Husband later defaulted and wife asked the Common Pleas Court in Delaware County, Pennsylvania to set an order. The court (by the Hon. Maureen Fitzpatrick) set an order in an amount of $689 a month, which was less than husband agreed to pay. Wife brought a motion before the same judge and requested her to uphold the agreement. The court refused, stating that it was not bound by the parties' agreement.


Does the court have to uphold a support agreement between parties that have divorced, or can it ignore it and set its own order? This brief also discusses many issues that are ancillary to this one and is one of the more contentious issues in family law.


On April 28, 1998, the Superior Court of Pennsylvania, before Justices Cavanaugh, Ford Elliot, and Chief Justice Cercone reversed the lower court and reinstated our client's child support in accordance with her contract. The court ruled that the Common Pleas Court erred in not upholding our client's marriage settlement agreement.

The brief of the appellant wife follows:

In the Superior Court of Pennsylvania

Phyllis Tomlinson


Vincent Tomlinson


Brief for the Appellant


Statement of Jurisdiction

This court has jurisdiction based upon Pa. R.A.P. 341 and 42 Pa.C.S. §5105, and 42 Pa.C.S. §742.

Statement of the Scope and Standard of Review

The scope of review in this case is consistent with other Superior Court decisions which deal with the Divorce Code. The standard of review is the abuse of discretion standard. See: Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983); Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358 (1983). Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025 (1983) Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983).

Statement of Questions Involved

Affirmed by the lower court.

Statement of the Case

Appellant is the former wife of appellee. Appellant appeals from an order of the Common Pleas Court of Delaware County denying her petition to enforce the parties' Property Settlement Agreement ("PSA"). Pursuant to the terms of the parties' PSA, wife (appellant) filed a complaint for support with the Domestic Relations Section of the Court of Common Pleas of Delaware County. On September 26, 1996, a hearing was held in that division before the Honorable Maureen Fitzpatrick. Judge Fitzpatrick, acting in the capacity of a judge of the Domestic Relations Division, lowered the amount of support due appellant from $200 a week

(approximately $866 a month) to $689 a month. R.2a. On October 15, 1996, wife (appellant) moved the lower court for an Order enforcing the January 26, 1994 PSA, as well as for counsel fees on the enforcement petition. R.7a. The divorce decree provided that the PSA was incorporated into the decree by reference, but that the said agreement "shall not merge with, but shall survive this Decree and Order." R.27a

On January 6, 1997, the matter was again argued Judge Fitzpatrick, now sitting as a judge in Miscellaneous Court, who took no testimony in the matter. R.9a. The same day the court entered an order denying enforcement of the PSA as well as for counsel fees. Petitioner-wife thereafter filed this appeal and the lower court filed its Opinion on June 26, 1997. R.2a - 18a.

This appeal is taken by petitioner wife from the Order of the Honorable Maureen Fitzpatrick, dated January 6, 1997, denying enforcement of her PSA.

Summary of the Argument

A property settlement agreement, which is incorporated but not merged, although the same might be modifiable downward in a Domestic Relations Court hearing support matters, is still enforceable to its fullest extent at law or in equity.

Since the Divorce Code grants equity powers to enforce such agreements to divorce court judges, no separate equity action need be commenced.

Notwithstanding the commencement of a support action, a party is still free to enforce a Property Settlement Agreement employing the divorce court's equity powers because private support agreements and court-determined support orders may exist simultaneously, stand apart and be enforced separately. The court, however, is not free to add restrictive language to an unambiguous agreement.

Appellant did not waive her rights to bring an independent equity action simply because she first commenced a support action before the Domestic Relations Division.

A statement in a property settlement agreement saying that wife shall bring an action before the Domestic Relations Division, does not limit her to that exclusive remedy and she is still free to enforce the agreement in toto before the divorce court acting on its equity powers.



On January 26, 1997, the parties hereto entered into a Property Settlement Agreement (herein referred to as the "PSA") as a part of a divorce action, filed in the Court of Common Pleas of Delaware County, Pennsylvania, No. 93-11580. R.28a-38a On May 31, 1994, a decree of divorce was entered in the action incorporating, but not merging the parties' PSA. R.27a .

The relevant portions of the PSA provided for wife to receive support payments for three children in the amount of $200 a week(1)The agreement further provided for counsel fees to be awarded by the successful party upon determination of breach(2) as follows:

The appellant (hereinafter "wife") subsequently filed a petition with the Domestic Relations Division. A hearing was held before the Honorable Maureen Fitzpatrick, who entered an order on September 26, 1996 for $689 a month. R.9a - 18a. Since Judge Fitzpatrick's order was less than the $200 a week promised to wife by appellee (hereinafter "husband") in the PSA, wife, on October 15, 1996, filed the Petition to Enforce Property Settlement Agreement which is the subject of this appeal.

The hearing on wife's petition occurred on January 6, 1997, once again before Judge Fitzpatrick, now sitting as a motion court judge, requesting the court's equity powers in divorce cases pursuant to 23 Pa.C.S. §3323(f)(3). R.9a - 18a. The fact of the arrearage was stipulated and not at issue. R.12a - 18a. Following the hearing, the lower court denied enforcement of the PSA, necessitating this appeal. Judge Fitzpatrick reasoned that wife was not entitled to recover the difference between her order as a domestic relations judge and the amount of the agreement because: a) the PSA allowed required wife to bring an action before the Domestic Relations Division; b) it omitted of allocation between the children and did not provide for health insurance, and c) the enforcement before the Domestic Relations Division foreclosed any action pursuant to the PSA if the husband complied with the support order. R.2a - 6a.

It is settled law that, if a property settlement agreement containing support provisions survives as an enforceable contract, it is governed by the law of contracts. . . . If a property settlement agreement is merged into a divorce decree or court order, . . . the agreement takes on all of the attributes of support orders for purposes of modification and enforcement. Ashbaugh v. Ashbaugh, 627 A.2d 1210, 426 Pa.Super. 589 (1993). In analyzing questions of merger and modifiability, the court must ascertain whether or not a merger was intended by the parties. McGough v. McGough, 361 Pa. Super. 391, 394, 522 A.2d 638, 640 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987). This determination is made by analyzing the terms of the agreement itself. When construing agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties' understanding. Ashbaugh, supra.

Even a cursory examination of the PSA discloses that the intent of the parties was to draft an agreement that would survive the decree and remain unmodifiable by the court. The agreement provided that it would be incorporated and not merged, and the a decree of divorce was entered on the same January 26, 1994. R.27a However, the Supreme Court has suggested that such a distinction may now be lessened or virtually eliminated in light of the 401.1(4) of the Divorce Code. Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991). That section provided:

A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement has been an order of the court except as provided to the contrary in the agreement. The use of these sanctions does not invalidate the agreement between the parties insofar as the agreement does not deny the children their right to adequate support. 23 Pa.C.S. §3105(a)

Here, the PSA required husband to provide the wife with advance notice of any delay in support payment or, it stated, "wife will assume that husband is not paying and she shall immediately commence proceedings with Delaware County Domestic Relations." A fair reading of the foregoing sentence should lead to an interpretation of the word "shall" as "may." Clearly, since this portion of the agreement was for the benefit of the wife, so it should not be seriously suggested that there would be a penalty to her if she chose not to file for immediate support proceedings. It is also argued that this provision cannot be deemed to be a restriction on wife's rights under the PSA. The parties were careful to specifically exclude merger of the PSA with the eventual decree. A reasonable interpretation of the agreement is that it shows an intent on the part of the parties to allow the fullest possible enforcement under the law, whether that be with the Domestic Relations Division, by an motion pursuant to the court's equitable powers in divorce, by a contract or an equity action.

In this case, the wife chose to first take the matter to the Domestic Relations Division. The Supreme Court has held in Knorr, supra, that a agreement such as the one in the instant case is not binding on a court acting in a support case. The court there found that the agreement of the parties is: best advisory to the court and swings on the tides of the necessity that the children be provided. To which the inter se rights of the parties must yield as the occasion requires.

* * *

While such an option may provide swifter and more enforceable results, it becomes subject to the court and the court is not bound by their agreement. In the exercise of its duty to provide for the best interests of the child, the court may order more than the agreement provides. Hence for decision here, the appellant may prove before the Family Court a need for more than the agreement provides to supply the best interests of the children. Knorr supra 512 Pa. at 87.

The Knorr court, therefore, held that such an agreement could be modified, upwardly or downwardly(5)Appellant, therefore does not question the authority of the support court in this case in lowering the amount due, where the court applies the appropriate guideline requirements. Knorr, however, does not end the issue.

This court in Swartz v. Swartz, 1997 Pa. Super. LEXIS 238, ___Pa.Super.___, 689 A.2d 302 (1997) recently and exhaustively interpreted the Knorr case vis a vis support provisions in property settlement agreements:

* * * As we noted in Ashbaugh v. Ashbaugh, 426 Pa. Super. 589, 627 A.2d 1210 (1993), the Knorr Court never addressed the question of whether a party's conduct in filing a support complaint in one action would preclude that party from seeking to enforce the contract in future disputes. Ashbaugh, 627 A.2d at 1215 n.5.

While the Knorr Court may not have specifically addressed the present issue, our Supreme Court has addressed similar issues regarding the enforceability of private agreements in conjunction with existing court-determined support orders. In Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), the Court held that an equity court has jurisdiction to enforce a private support agreement notwithstanding the existence of a separate court order reducing the party's child support obligation. Brown, 435 A.2d at 861. The Supreme Court opined that a result to the contrary would serve to illegitimize future separation agreements and encourage a party to promise anything to obtain a divorce, knowing he or she would never be bound by the terms of the promise. Id. at 863. The Court also noted that such a result would shake the foundations of contract law and the sanctity of a bargain made between two parties at arms length. Id. Further echoing Brown's conclusion is an abundance of precedent in Pennsylvania establishing the proposition that private support agreements and court-determined support orders may exist simultaneously, stand apart and be enforced separately. See Soll v. Soll, 429 Pa. Super. 312, , 632 A.2d 581, 584 (1993) (it is possible for support agreements and court orders to coexist, stand apart, and be enforced separately). Swartz, at 689 A.2d 305.

The Common Pleas Court below pays lip service to the mandates and interpretations of this court's opinion in Swartz but attempts to depart therefrom citing paragraphs 3b(6) and 3h(7) of the agreement. Referring to these two paragraphs, the court questioned "whether the parties intended to bar either parent from seeking a change in child support if circumstances changed." R.5a. It is submitted that this determination was erroneous and an abuse of the court's discretion.

This court may find an abuse of discretion only if the hearing court misapplied the law or failed to follow proper legal procedures. Miller v. Miller, 577 A.2d 205, 395 Pa. Super. 255 (1990). An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. Braderman v. Braderman, 339 Pa. Super. 185, 190, 488 A.2d 613, 615 (1985). It exists if the law is overridden or misapplied, or if the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record. Miller, supra.

The trial court concluded that because the agreement did not provide for medical insurance or allocate support, and because it required wife to commence proceedings with the Delaware County Domestic Relations, it became modifiable by the court and barred an equity or civil action. R.5a.

The agreement itself nowhere prohibits the commencement of an equity or assumpsit action. It does not say that the Domestic Relations proceeding shall be the appellant's only remedy. Nowhere in the agreement can there be seen an intention to restrict the appellant's rights. In fact, the part of the agreement wherein there is the mention of the Domestic Relations proceedings can be interpreted to convey rights to appellant, not remove them from her. That section imposes restrictions on the husband and grants them to the wife; e.g. it is the husband who must pay the support; it is the husband who must give advance notice to wife of any delay. The agreement further states that if this notice is not given: "wife will assume that husband is not paying..." It is submitted that the rather unfortunate use of the word "shall" is a result of inartful drafting and is not consistent with the spirit of the paragraph.

In effect, what the trial court did in this case was to enlarge the scope of the agreement in favor of the husband. The trial court has essentially added language to the agreement that did not exist before, i.e words to the effect that the Domestic Relations action would be the wife's sole remedy. To come to this point, the trial court further abused its discretion by virtually rewriting the parties' agreement where modification was expressly prohibited(8)

When construing agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties' understanding. Ashbaugh, supra. The agreement herein is clear and unambiguous, even though it does not specifically allocate funds or provide for medical insurance. This court held in Jones v. Jones, 438 Pa. Super. 26, 651 A.2d 157 (1994) that it is improper for a court to look outside the terms of a clear agreement. One does not need to know how the wife is to allocate funds(9) between the children, or for that matter, anything at all about medical insurance to see that any term respecting dual enforcement (support and equity) is conspicuously absent from the agreement. The court should look what is in the contract and not what is omitted to determine what is clear and unambiguous. It is, therefore, clear that there is no mention of the exclusivity of the wife's right to enforce this provision in Domestic Relations Court alone. Further, the mere ability to enforce of the agreement before a court of equity and a support court does not in and of itself make the agreement ambiguous, since both remedies can exist simultaneously. Swartz, supra(10). Likewise, enforcement before a support court, even with a negative result, can in no way impair a party's rights to enforce the matter before a court of equity. Swartz.

For the trial court to emasculate the parties true intent, i.e. that wife receive a minimum of $200 a week and vitiate their contract, would as the Supreme Court opined in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), shake the foundations of contract law. Does the Common Pleas Court suggest that the wife's entire contract rights respecting support be obliterated over the use of the word "shall"? This court cannot be so fickle. Even if the court were to infer that the word "shall" means the wife "must" file with the Domestic Relations Division, this does not by necessity exclude further remedies.

The trial court goes on to state in its opinion that husband's compliance with the court's order in the support case "barred wife's Petition to Enforce herein." R.6a. This court has treated this issue in the Swartz case. Citing Guerin v. Guerin, 296 Pa. Super. 400, 442 A.2d 1112 (1982), this court noted that an order of a domestic relations judge reducing a support obligation is not res judicata of the issue of enforceability of a private support agreement when it has not been entered as a court order. In this case, although the said agreement was incorporated, it was not merged and as such evidences the parties intent to keep it separate. This court further cited Trumpp v. Trumpp, 351 Pa. Super. 205, 505 A.2d 601, 604 (1985) for the proposition a spouse can pursue an equitable remedy of specific enforcement of the parties' private agreement even if intervening support order had been obtained in court.

Finally, the lower court appears to be indicating that wife may have, in some way, waived her rights by bringing the matter to the court's equity side after addressing the issue on the domestic relations side. No mention of the contract was made in that court. This court has already addressed a similar issue in Lipschutz v. Lipschutz, 391 Pa. Super. 537, 571 A.2d 1046 (1990). In that case this court held that wife's failure to raise the enforceability of a property settlement agreement in a prior support action did not act as a waiver to her doing so later on. This court reasoned that:

...the actions of the wife in failing to raise the applicability of the property settlement agreement prior to the filing of her second petition for support could not be construed as a waiver where the terms of the agreement clearly evidenced an intent to enter into binding contractual obligations alterable only by a signed writing to the contrary. As no subsequent written agreement was signed 7 by the parties amending or modifying the separation agreement, there was no waiver.

We are persuaded by the reasoning in Trumpp,(11) and find it applicable to the facts of the instant case. Here, as in Trumpp, appellee initially filed a petition for support rather than rely on the provisions of the property settlement agreement. In addition, the agreement in the instant case is clear in terms of an intent to enter into contractual obligations and specifically provides for written confirmation, signed by both parties, in order to terminate the contract. As no evidence of a writing was received by the trial court expressing an intention to terminate the support provisions of the agreement, there is no waiver. Lipschutz at 391 Pa. Super. 549.

Here, as in Lipschutz, there is clear language in the contract specifying how the agreement may be changed. The agreement provides that, "This agreement represents the entire agreement between the parties and shallnot be changed except by written agreement. R.37a. Emphasis added. Since there was no evidence offered of a modification, this case is on all fours with Lipschutz. It is clear, therefore, that no action of the plaintiff, especially not an attempt to enforce the agreement in support court, can act as a waiver of any of appellant's rights.

Furthermore, the agreement later provides: 3 j) The failure of either party to insist upon strict performance of any provision of this agreement shall in no way affect the right of such party hereafter to enforce the same nor shall their waiver of any breach of any provision hereof be construed as a waiver of any subsequent default of the same or similar nature, nor shall it be> 

Transfer interrupted!

ormance of any other obligation. R.37a. Appellant's actions at the support hearing could not, therefore, waive any of her rights in on the equity side.

Lastly, since the PSA refers to counsel fees(12) in the event of a breach, it is submitted that the trial court erred in refusing counsel fees.


For all of the foregoing reasons, appellant requests this honorable court to reverse the decision of the Court of Common Pleas of Delaware County and order the enforcement of the PSA. Appellant further requests that this matter be remanded for a hearing on the amount of counsel fees, arrears due pursuant to the agreement and for such further relief as the court deems just.

Respectfully submitted,

Lawrence S. Rubin, Esquire

Attorney for appellant

1. "3. b) Husband shall provide child support payment for the parties (sic) three children in the amount of two-hundred ($200.00) dollars per week; to be timely paid on Friday of each week. Moreover, Husband promises to provide Wife with advance notice of any delay in support payment; Otherwise, Wife will assume that Husband is not paying and she shall immediately commence proceedings with Delaware County Domestic Relations." R.36a[back]

2. "2. l) In the event that either party must enforce this agreement by retaining an attorney or by pursuing any breach of this Agreement through the Courts, the party determined to be in breach of this agreement shall pay the successful party all attorney's fees which the successful party may have incurred by reason of the breach." R.35a [back]

3. Pursuant to this section, the trial court in divorce possesses full equity powers. It is unnecesary to commence a separate plenary equity action. See, Bower v. Bower, 531 Pa. 54 611 A.2d 181 (1992).[back]

4. Presently found at 23 Pa.C.S. §3105(a). [back]

5. See Judge Cappy's concurrence at 527 Pa. 87.[back]

6. Husband shall provide child support payment for the parties (sic) three children in the amount of two-hundred ($200.00) dollars per week; to be timely paid on Friday of each week. Moreover, Husband promises to provide Wife with advance notice of any delay in support payment; Otherwise, Wife will assume that Husband is not paying and she shall immediately commence proceedings with Delaware County Domestic Relations. [back]

7. This agreement represents the entire agreement between the parties and shall not be changed except by written agreement. ... [back]

8. See footnote 6 above.[back]

9. It is interesting to note that it is rare that one child would ever be allocated more than another, nor is it relevant to the issue of equity enforcement. [back]

10. This court concluded that the existence of a court-imposed order of support does not vitiate a private agreement for support that has not been merged into a decree of divorce, nor does it impede either parties' ability to enforce the terms of the agreement in an action in assumpsit or equity. This court further stated that the lower court had erred in failing to recognize that court orders for support and private agreements that are independent of, or survive a divorce decree, are not mutually exclusive.[back]

11. Trumpp v. Trumpp, 351 Pa. Super. 205, 505 A.2d 601 (1985). [back]

12. See footnote 2, above. [back]