Polito v. Polito

OLSZEWSKI, Judge, concurring and dissenting.-

We concur in part, as we agree that the law of the support agreement should control rather than the law of the divorce decree, and that the trial court therefore had the power to enforce the agreement as if it were a court order for alimony.

We would hold, however, that the trial court erred in reaching out to transform the parties’ agreement into an alimony order. By affirming that improper and unnecessary action, the majority would disregard the precedent which *335requires our courts to respect the private contractual nature of such agreements, and we respectfully dissent on this point.

The section of the contract which is at issue reads as follows:

[Husband] agrees to pay [Wife] ... the sum of [$225 per week] for her support and maintenance. The parties hereto are contemplating a divorce under the No-Fault Divorce Code of the Commonwealth of Pennsylvania effective July 1, 1980. The parties hereto agree that if a divorce is instituted between the parties, that the sum shall be entered as alimony in that proceeding and shall be subject to all the incidences thereof. The entry of that Order shall supersede any further provisions of this paragraph.

(Emphasis supplied.)

Clearly, the parties originally intended to be divorced according to the Pennsylvania Divorce Code. The underlined provision became impossible to fulfill, however, when Wife sued for divorce in the Dominican Republic: Wife concedes that the law of that sovereign does not recognize post-divorce alimony. Having failed to take effect “in that proceeding,” the provision became void.1

In its divorce decree, the foreign court incorporated the parties’ agreement with the following language:

That the agreement entered into between the parties ... shall survive and shall not be merged in this Judgement of divorce and that the parties are hereby ordered and directed to comply with each and every provision of the agreement.

Civil Decree No. 228/81 at 3-4. The effect of language rejecting merger of the agreement into the decree is clear: the agreement “remains a contract between the parties, in *336which the court has no involvement.” McMahon v. McMahon, 417 Pa.Super. 592, 602, 612 A.2d 1360, 1365 (1992). Absent proper authorization on the face of the agreement, therefore, a court may not unilaterally modify an unmerged agreement for spousal support in the same manner as it would modify an alimony order. Id.; Brower v. Brower, 413 Pa.Super. 48, 55-57, 604 A.2d 726, 730 (1992); accord 23 Pa.C.S.A. § 3105(c).

In considering the paragraphs quoted above, the trial court found that the foreign court had given effect to the underlined provision by directing the parties to “comply with each and every provision of the agreement.” In other words, the court found that the foreign court had ordered the parties to go to another forum and have an alimony order entered. See opinion, 3/14/94 at 4, 6. This interpretation has no basis in either fact or law. Having failed to take effect “in that proceeding,”2 the provision no longer contained any obligation with which a court could order compliance. The trial court’s rationale would suggest that the foreign court modified the agreement, and then ordered the parties to comply with its modification. A review of the above-quoted language, however, reveals that the foreign court nowhere purported to modify the parties’ agreement.

Explaining its rationale, the trial court declared that the ■foreign court had “imputed knowledge” of the substance of the parties’ agreement, and that by directing compliance it had merely given effect to their clearly expressed intent: Id. at 7. Obviously, what really happened is that the trial court, and not the foreign court, attempted to modify the parties’ obligation by reinterpreting their agreement.

In upholding the trial court’s misreading of the documents quoted above, the majority simply notes that “[t]he paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent.” This principle is inapplicable here on two grounds. First, the intent of the parties is irrelevant to the *337trial court’s recharacterization of the foreign court’s decree. Second, the majority ignores the primary rule of contract analysis: look to the plain meaning of the words. The plain meaning of the words of a support agreement, like those of any contract, cannot be ignored under the guise of interpretation. E.g., Valant v. Valant, 437 Pa.Super. 635, 640, 650 A.2d 1087, 1089 (1994). When the provision failed to take effect at the required time, it dropped out of the contract. Our review of that document reveals neither an ambiguity nor an authorization by the parties that might excuse the trial court’s unilateral modification of this private contract.

While we would therefore find the court’s action improper, we also note that it was entirely unnecessary. The Domestic Relations Code provides in Section 3105 that “an agreement regarding matters within the jurisdiction of the court under this part” may be enforced as an order, unless the agreement provides to the contrary. 23 Pa.C.S.A. § 3105. While a Pennsylvania court may not modify an unmerged agreement for spousal support, it may still enforce such an agreement as if it were its own alimony order, provided that the agreement does not forbid such enforcement.

In defining the scope of jurisdiction, the Code states in Section 3104 that our courts may determine a matter related to a foreign divorce decree where the matter “has not been decided.” 23 Pa.C.S.A. § 3104. We agree with the majority that the case of Doyle v. Doyle should ultimately be distinguished, but find that it remains relevant in part. In that case, the foreign court did not decide the matter of alimony because the parties had decided that matter for themselves. On their own, they decided to create an obligation to pay alimony — not the court, which had no power to impose such an obligation. When the wife sought to enforce that agreement in Pennsylvania as an order, however, we refused because such enforcement was against the terms of the agreement, which we interpreted according to Texas law. 355 Pa.Super. at 388-90, 513 A.2d at 485.

Like Doyle, the case at bar involves an agreement which has taken the matter of alimony out of the foreign court’s *338consideration. Looking to the terms of the agreement, then, we find that unlike the contract at issue in Doyle, this agreement does provide for the extra enforcement mechanisms, as the parties intended Pennsylvania law to control.3

We stress the importance of this distinction: the matter of alimony has been reserved here (and therefore our courts have jurisdiction to consider it) not because the foreign court issued no explicit ruling on the question, but rather because the parties removed the matter from that court’s consideration. If the parties in Doyle had obtained the same decree, but had not entered into any support agreement, then we would still have refused to consider a request for an alimony order — but in that case because of a lack of jurisdiction, not because of a choice of law. Because the parties had not acted to remove that matter from the foreign court’s jurisdiction, that court would necessarily have decided it sub silentio as part of the decree. No explicit ruling would have been necessary, because the question could have had only one answer in a Texas court: no court-ordered alimony. Therefore, we would have no jurisdiction to consider the issue any further.

On the contrary, the majority apparently holds that the reason the foreign court did not decide the matter in the case at bar was because it had no power to order alimony. Slip op. at 6. Under this reasoning, any divorce decree from a state that does not recognize alimony is subject to review and modification by our courts. We believe that the principles of comity and full faith and credit do not allow such a result.

*339Finding this approach more tenable, and more conforming to the principles of comity and our own precedent than the interpretation that the majority has adopted, we respectfully dissent from that portion of the opinion which affirms the trial court’s transformation of the parties’ private contract into a unilaterally modifiable order.

. We also note that because Husband entered an appearance in the foreign proceeding, the doctrine of "divisible divorce” could not apply in this case. When applicable, this doctrine allows the parties’ marital status to be adjudicated in a different forum than the economic aspects of the divorce. See Sohmer v. Sohmer, 318 Pa.Super. 500, 505-07, 465 A.2d 665, 668 (1983) (holding that the doctrine of "divisible divorce” is limited to cases of foreign ex parte divorces).

. Neither Wife nor the trial court have attempted to suggest that the case at bar could be considered part of the same "proceeding” as the foreign suit which ended fourteen years ago.

. Husband argues that Section 3105, which was enacted in 1988, may not be retroactively applied to the parties’ 1981 agreement. We have already rejected this argument in Jackson v. Culp, where we found such application to be proper and held that "the amendment neither adds to nor subtracts from the substantive rights of the parties under their [agreement]; rather, it merely provides an additional procedural vehicle for the enforcement of their respective rights under their [agreement].” 400 Pa.Super. 519, 523, 583 A.2d 1236, 1238 (1990), alloc. denied, 529 Pa. 621, 600 A.2d 537 (1991); see also Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 599, n. 6, 627 A.2d 1210, 1215 n. 6 (1993).