Opinion · Superior Court of Pennsylvania

Commonwealth Ex Rel. Kurniker v. Kurniker

96 Pa. Super. 553

Type: Opinion
Court: Superior Court of Pennsylvania
Jurisdiction: Pennsylvania
Date: 1929-04-22
Topic: general

Opinion by Trexler, J., The parties were married in 1894 and lived together until 1910 when the wife left the husband. Shortly afterwards the husband signed a document in which it was provided that all matters in dispute embracing the claims of each other and the property of each other *555 should be submitted to arbitrators. The arbitrators decided that the husband should pay to his wife the sum of $45 per month for the support of herself and child. In 1912 the wife made an information against the defendant alleging that he failed to support her and her child and after hearing an order was made on him to pay back-payments of $135 and $45 per month and give bond to comply with the sentence. In 1913 the husband filed a libel in divorce alleging desertion, but this was refused because it was held that both the parties had consented to the separation.

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Cited by: 14 opinions

COMMONWEALTH EX REL. KURNIKER v. KURNIKER,96 Pa. Super. 553(1929)

Commonwealth ex rel. Kurniker, Appellant,v.Kurniker.

Superior Court of Pennsylvania.

April 22, 1929.

July 2, 1929.

Husband and wife — Separation — Order of support — Divorce— Vacating order.

In a petition by a husband to vacate an order of support, it appeared that he and his wife separated by mutual consent, and agreed by contract to submit disputes to arbitrators. The arbitrators fixed the sum to be paid in support of the wife. The husband defaulted and the court of quarter sessions by order directed the payment of that sum. Subsequently the husband obtained a divorce on the ground of desertion. In such case the order of support was properly vacated.

A husband is under no duty to support his wife when the marriage relation has been terminated by a decree of divorce.Page 554Separation agreement — Enforcement — Court of quartersessions.

A separation agreement cannot be enforced by a court of quarter sessions even though it was provided that the parties could by proceedings in law or equity enforce its provisions. The court of common pleas is the proper forum.

Argued April 22, 1929.

Appeal No. 158, April T., 1929, by plaintiff from decree of C.C., Allegheny County, at No. 353 of 1912, in the case of Commonwealth of Pennsylvania ex rel. Annie N. Kurniker v. Max W. Kurniker.

Before TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.

Petition for vacation of order of support. Before KENNEDY, J.

The facts are stated in the opinion of the Superior Court.

The court vacated the order of support. Plaintiff appealed.Error assigned,among others, was the order of the court.

Leonard S. Levin,and with himMaurice Finkelhor,for appellant. — A separate agreement providing for support is not terminated by divorce: Muhr's Estate,59 Pa. Super. 393; Miller v. Miller,284 Pa. 414.R.G. Bostwick,and with himClyde A. Armstrong,ofThorp,Bostwick, Stewart and Reed,for appellee, cited: Heilbron v. Heilbron,158 Pa. 297.

OPINION BY TREXLER, J., July 2, 1929:

The parties were married in 1894 and lived together until 1910 when the wife left the husband. Shortly afterwards the husband signed a document in which it was provided that all matters in dispute embracing the claims of each other and the property of each otherPage 555should be submitted to arbitrators. The arbitrators decided that the husband should pay to his wife the sum of $45 per month for the support of herself and child. In 1912 the wife made an information against the defendant alleging that he failed to support her and her child and after hearing an order was made on him to pay back-payments of $135 and $45 per month and give bond to comply with the sentence.

In 1913 the husband filed a libel in divorce alleging desertion, but this was refused because it was held that both the parties had consented to the separation. In 1916 the husband made several attempts to have his wife return to his home, but she refused. In 1924, he made a second attempt to secure a divorce which was successful, the matter being tried before a jury. He had continued to pay the sum set by the court each month, but after he secured his divorce he applied to the court to have the order of support vacated. This was done and from that action the appeal is taken. The daughter has attained her majority and is not a factor in the case.

The court, in vacating the order, held that the agreement and award of 1910 were terminated by the offer of the defendant to resume cohabitation and the wife's refusal to yield to his request. We do not think the lower court was required to decide this question.

The original order for support was made under authority given by law and did not require any agreement of the parties to support it. Since the husband in the agreement had agreed to a stipulated sum, it was proper for the court to take that in consideration and fix that sum as the amount he was required to pay under the order of court, if he was of sufficient ability so to do. The fact that the agreement had a clause in which it provided that the parties could by proceedings in law, or equity, enforce its provisions, did notPage 556confer upon the court of quarter sessions, in this case, the right to enforce that contract. If the husband had agreed to convey real estate to his wife or had engaged to do any other act of that nature, she could not have started proceedings in the quarter sessions to have him carry out the contract. Her proper forum was the common pleas. When the order was made upon the defendant, it was made as stated before, under the jurisdiction conferred upon the quarter sessions. When the marriage relation ceased to exist, the order of the court was properly vacated because there was no duty on the husband to pay to this woman's support when she ceased to be his wife. Whether her resort to the quarter sessions for support, or her refusal to accept her husband's offers to have her return to him discharged him from his contract to pay her a certain sum per month, we need not here decide. This is not the proper proceeding to test those questions.

The order of the lower court is affirmed.