concurring:
I agree with the result reached by the majority in this case, but write separately because I would not base our decision on the opinion of the trial court as does the majority.
The trial court opinion, quoted at length by the majority, itself relies heavily on another trial court opinion, Fleming v. Fleming, 130 P.L.J. 68 (1982).
In Fleming the trial court explained that it would find consent alimony decrees to be modifiable pursuant to Section 501 of the Divorce Code, but would not find decrees combining alimony and equitable distribution provisions to be so modifiable.
I note initially my disagreement with a rule that would call for different results depending on whether the decree in question refers to equitable distribution. As the author of the Fleming opinion notes, “We would be naive to think that trade offs do not occur between equitable distribution and alimony.” Just because a decree grants only alimony, I would not conclude that the agreement was made without regard to the equitable distribution of marital property.
Alimony awards entered pursuant to Section 501 of the Divorce Code are to be based in part upon a consideration of *124marital property distributed by way of equitable distribution. See Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983), 23 P.S. § 501(a)(1). Yet such orders are modifiable. See 22 P.S. § 501(e). Similarly, it seems clear that an agreement regarding alimony would also of necessity have resulted from a consideration of the equitable distribution of marital property. I would not, therefore, make the distinction made in Fleming.
Furthermore, since the Fleming opinion was issued, our court has dealt with a similar situation. In VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984), we refused to modify an agreement for the payment of alimony. We treated the agreement as the courts treat contracts generally declining to modify it pursuant to the provisions of Section 507 of the Divorce Code which provides that cohabitation is a bar to alimony. We noted that “The alimony payments in this case, while enforceable as a court order, [see 23 P.S. § 501(f) ], are not the result of an ‘award’ of alimony by the court, but rather are the result of an agreement between the parties.” 336 Pa.Super. at 505, 485 A.2d at 1196.
I would refuse to modify the agreement before us because it does not itself permit such modification except in the case of cohabitation which appellant failed to prove.