Michael E. Bertin Partner at Obermayer Rebmann Maxwell & Hippel.
In Pennsylvania, subsistence is viewed as a secondary means to fair distribution. Maintenance can either be agreed by the parties or ordered by a court. If maintenance is ordered by a court, the maintenance supplement may be changed, suspended or terminated due to the changed circumstances of the parties. However, if there is maintenance under an agreement between the parties, the language of the agreement controls the maintenance and the maintenance can only be changed or suspended or terminated if the agreement so provides.
The most recent case of Rosiecki against Rosiecki _____, A.3d _____, 2020 PA Super. 92 (Pa. Super. 2020) deals with the question of the change in maintenance in an agreement. The problem of changing alimony is interesting because of the large difference in treatment between alimony resulting from an agreement versus a court order. Maintenance resulting from an agreement is nothing more than a contract period for which traditional contractual principles apply. When court maintenance is granted, the result is a court order rather than an agreement between the parties, and court orders are subject to change.
In the Rosiecki case, in their divorce case, the parties concluded a marriage agreement before the divorce master. In their agreement, the parties first converted a spousal support order into Alimente Pendente Lite and stated that “the Alimente Pendente Lite will continue as a maintenance order of USD 900 per month after the parties have been divorced”. It is also important that the agreement provides for the following: “The maintenance payment will continue until the following events occur: As soon as all of the above properties that we have listed are sold, the husband’s maintenance obligation ceases completely.” The agreement saw then propose a percentage reduction in the maintenance obligation related to the sale of each property until they are all sold, which would trigger the complete termination of the maintenance payment. “
According to the Commission, the agreement was incorporated by not including it in the final divorce decree on the divorce of the parties. Because the parties’ marriage agreement was not included in the final divorce decree, the agreement retained its characteristics as a standalone agreement subject to contractual principles, rather than adopting the characteristics of a court order which can then be modified independently of the terms of the agreement. About 10 years after the parties reached their agreement, which was later included in the parties’ divorce decree, the husband filed an urgency motion to end the maintenance and requested a hearing. In his husband’s petition, he admitted that he was obliged to pay alimony because the parties’ four properties had not been sold. According to the opinion, “He argued, however, that he could no longer afford to make payments because he was” unemployed “and had health problems.” The husband also argued, among other things, that he did not understand the agreement regarding the payment and termination of alimony and that he believed that the agreement and the order were “false and flawed”.
A hearing was scheduled at the husband’s request and at the hearing the wife made an oral application to deny the husband’s request. The court then ordered the wife to submit a written request and asked the husband to submit a response. Ms. alleged in her motion that “the court was not legally empowered to change the terms of the husband’s maintenance obligation because it was an agreement between the parties and not a court order.” In response, the husband asked the court, among other things, to order an evidence hearing for the testimony and the creation of minutes.
When the court found that the terms of the parties’ agreement were clear and unambiguous and provided no language for amendments, extensions or terminations, the woman’s motion was upheld, without a hearing. The husband then appealed in good time. On appeal, the husband alleged primarily that the court wrongly granted the wife’s motion to dismiss the husband’s motion for termination of maintenance by failing to find that 23 Pa.CS Section 3701 contained a provision for the change, Suspension or even termination includes alimony, and if it has not been determined that it had both jurisdiction and authority to consider the urgency motion for termination of alimony and the request for a hearing made by the husband.
In analyzing these questions, the Pennsylvania Supreme Court, citing earlier decisions, stated, “The terms of a marriage agreement cannot be changed by a court unless the agreement contains a specific change provision.” The Supreme Court stated Further: “In interpreting agreements with clear and precise terms, this court need only examine the scriptures itself to improve the understanding of the parties.” According to contract law, “Spouses should be bound by the terms of their agreements without fraud, misrepresentation or coercion be”.
With regard to maintenance, the Supreme Court stated in particular: “In the context of a settlement agreement, maintenance is not subject to the law, but to the express mutual consent of the parties.”
The Pennsylvania Divorce Code has a section for upkeep. This section is 23 Pa.CS 3701. According to the Maintenance Act, a “maintenance allowance can only be granted to each party if it deems it appropriate, only if it determines that maintenance is required”. In determining whether maintenance is required and the nature, amount, duration and type of payment, the court is required to consider all relevant factors, including 17 factors listed by law. As mentioned earlier in this article, maintenance obligations resulting from a court order may be changed due to changed circumstances. The Supreme Court found that the court did not misuse its discretion or commit an error of law as the terms of the agreement between the parties limited the court’s powers. The statement stated: “As the agreement did not allow for judicial amendments, the court had no power to terminate the husband’s maintenance obligation without the consent of the parties.” As such, the Supreme Court found that the court had approved the woman’s motion for dismissal rightly granted. On the question of whether the court rejected the husband’s petition without an evidence hearing, the Supreme Court found that the court had made no mistakes as an evidence hearing was not required to resolve his claims. The Supreme Court stressed, “Even if the court accepted the husband’s allegations of fact as true, the husband could not provide a legal basis for relief.” Given that the agreement was clear and unambiguous, the court had no basis for one Hearing and the court’s decision upheld.
This case is important to family law practitioners and the family court bank. It reminds the family law practitioner when drafting marriage contracts that the following must be stated in the contract if the parties wish that the maintenance provisions contained therein may in future be changed by the court or that the court may be able to terminate such provisions or suspend Just as the court is bound by the terms of the contract. However, if the parties are litigating the economics of their divorce and the court issues a maintenance order, it is important to remember that the maintenance supplement may be changed in the future. Sometimes this important difference can be an important factor in determining whether parties are going to litigate or settle a case.
Michael E. Bertin is a partner in the law firm Obermayer Rebmann Maxwell & Hippel. Bertin is a co-author of the book, Pennsylvania Child Custody Law, Practice and Procedure. Bertin is chairman of the family law division of the Pennsylvania Bar Association, a member of the American Academy of Matrimonial Lawyers, past chair of the family law division of the Philadelphia Bar Association, and currently co-chair of the custody committee. He can be reached at 215-665-3280 or [email protected].