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HomeMy WebLinkAbout90-2625 CIVILMARY ANNE SCHEIB DILLON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF/PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL A. DILLON, DEFENDANT/RESPONDENT : 2625 CIVIL 1990 IN RE: PETITION TO ENFORCE PROPERTY SETTLEMENT AGREEMENT OPINION AND ORDER OF COURT Bayley, J., June 4, 2002:-- Petitioner, Mary Anne Scheib Dillon, and respondent, Michael A. Dillon, were married on April 22, 1978. They separated in early 1990, and were divorced by a decree entered on November 20, 1990. They have three children ages 22, 19 and 17. Petitioner remarried on December 27, 2001. On November 8, 1990, petitioner and respondent executed a Property Settlement Agreement which was not incorporated into the Divorce Decree. Paragraph 12 of the Agreement provides: Husband agrees to pay alimony to Wife, as follows: A. The amount of alimony shall be the greater of Twelve Thousand ($12,000.00) Dollars per year, or thirty (30%) percent of the total commissions or other gross compensation earned and received by Husband in any one year, less any monies deducted from such commission or other gross payments for reimbursement of Husband's expenses by his employer. Husband shall pay to Wife the sum of One Thousand {$1,000.00) Dollars per month, on or before the first day of each and every month immediately following the date of his agreement, which said sum shall be applied against Husband's alimony obligation. In the event that Husband's total commission or other gross earnings, reduced by the reimbursement to his employer for expenses paid for 2625 CIVIL 1990 Husband, requires a payment beyond $1,000.00 per month, Husband shall calculate and pay such additional sum to Wife, and provide her with a reasonable accounting of such calculations, within twenty (20) days of the date he receives additional payment of such commissions from his employer. B. The term of the alimony shall be twelve (12) years from the date of this agreement. C. Neither the term nor the amount of the alimony payable by Husband to Wife under this agreement shall be subject to modification, suspension, or termination by any person, court, tribunal, or entity whatsoever except by the mutual written consent of Husband and Wife, reduced to writing. D. The parties agree that the payments made pursuant to this paragraph by Husband to Wife shall be treated by both of them as alimony, that Wife shall include such payments in her income for purposes of income taxation and that Husband is entitled to deduct such payments to Wife as alimony for purposes of income taxation. (Emphasis added.) Under this Agreement, the $1,000 per month alimony payments last for twelve years, which is until November, 2002. For ten and one-half years between November 8, 1990, and May, 2001, respondent paid petitioner $1,000 per month alimony pursuant to the Agreement. He has failed to make any payments since May, 2001. The parties have never entered into a mutual written consent to modify or terminate the contractual requirement of respondent to pay petitioner $1,000 a month alimony for twelve years. That prompted this petition to enforce the payments consistent with paragraph 12 of the Property Settlement Agreement. Petitioner further seeks an award of counsel fees under paragraph 23 of the Agreement, that provides: In the event that any of the provisions of this agreement are breached or violated by either of the parties, the other party shall be entitled to enforce this agreement by an appropriate action in law or in equity or to take any other action to which they are lawfully entitled to -2- 2625 CIVIL 1990 enforce this agreement or otherwise protect their rights. In the event that such action is commenced by one of the parties and the other party is found to have breached or violated any of the terms and provisions of this agreement, the party having so violated or breached the agreement, shall be responsible for and shall promptly pay upon demand the reasonable attorney's fees incurred by the other party to enforce their rights hereunder. At the hearing, respondent made an offer to testify as to an oral agreement regarding the modification of alimony that he maintains he entered into with petitioner before the written Property Settlement Agreement was executed on November 8, 1990. Respondent did not make any claim of fraud, accident or mistake with respect to the provisions in the fully integrated, comprehensive Property Settlement Agreement that contains the following clause. WHEREAS, the parties hereto have mutually entered into an agreement for the division of their assets, the provision for their children and for their rights and responsibilities in and toward such children, the provision for the liabilities they owe, and provision for the resolution of their mutual differences, after both parties have had full and ample opportunity to consult with their respective attorneys, and the parties now wish to have that agreement reduced to writing. In Kehr Packages, Inc. v. Fidelity Bank, National Association, 710 A.2d 1169 (Pa. Super. 1998), the Superior Court stated that: The parol evidence rule states that, absence fraud, accident, or mistake, parol evidence of a prior or contemporaneous oral agreement is not admissible to alter, vary, modify, or contradict the terms of a contract which has been reduced to an integrated written agreement. We properly did not allow testimony as to an alleged oral agreement regarding the modification of alimony that was not made part of the integrated, written Property -3- 2625 CIVIL 1990 Settlement Agreement. The Divorce Code at 23 Pa.C.S. Section 3105, provides: (a) Enforcement.--A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement. (b) Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (c) Certain provisions not subject to modification.~ln the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court. (Emphasis added.) Paragraph 12C of the Property Settlement Agreement specifically provides that the alimony shall not be subject to modification or termination "except by mutual consent of Husband and Wife, reduced to writing." Where an agreement is entered into for a specific amount of alimony for a specific period of time, the contract is not subject to the modification provisions in the Divorce Code that are applicable to court ordered alimony. McMahon v. McMahon, 417 Pa. Super. 592 (1992); Woodings v. Woodings, 411 Pa. Super. 406 (1992). Respondent, who is an attorney, testified that he and petitioner made an oral agreement in January, 2001, regarding the modification of alimony in their November 8, 1990 Property Settlement Agreement. In Somerset Community Hospital v. Mitchell, -4- 2625 CIVIL 1990 685 A.2d 141 (Pa. Super. 1996), the Superior Court of Pennsylvania stated that "[a]n agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties' conduct clearly shows the intent to waive the requirement that the amendments be made in writing." Such an oral modification must be proven by clear, precise and convincing evidence. Id. Respondent testified that in January, 2001, petitioner orally agreed to waive her contractual alimony in conjunction with other changes they made to their Property Settlement Agreement regarding the disposition of their real estate and the care of their children after petitioner became engaged. Petitioner testified and denied that there was such an oral agreement. After reviewing all of the evidence and weighing the credibility of the witnesses, we are not satisfied by clear and convincing evidence that petitioner entered into an oral agreement to modify the contractual alimony that she is entitled to under the Property Settlement Agreement dated November 8, 1990. Respondent has breached the Property Settlement Agreement by not paying monthly alimony of $1,000 since May, 2001. Pursuant to Paragraph 23 of the Agreement, petitioner is entitled to her reasonable counsel fees to enforce the Agreement. Petitioner's reasonable counsel fees to enforce the payment of alimony are $787.50. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2002, IT IS ORDERED: (1) Within fifteen (15) days of this date, respondent shall pay petitioner all -5- 2625 CIVIL 1990 alimony due and unpaid under the provisions of the parties' Property Settlement Agreement dated November 8, 1990. (2) Within fifteen (15) days of this date, respondent shall pay petitioner $787.50 for counsel fees incurred in the enforcement of the Property Settlement Agreement. By the Court, Edgar B. Bayley, J. Carol J. Lindsay, Esquire For Petitioner Michael A. Dillon, Esquire, Pro se 124 Berkley Drive Mechanicsburg, PA 17055 :saa -6-