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Stein v. Fellerman

Decided: October 26, 1976.

IDA STEIN, PLAINTIFF-RESPONDENT,
v.
EDWIN L. FELLERMAN, DEFENDANT-APPELLANT



Bischoff, Morgan and Collester.

Per Curiam

By a motion filed August 18, 1975 plaintiff wife sought to have defendant, her former husband, adjudged in contempt for failure to comply with the terms of a property settlement incorporated in and made part of a judgment of divorce which became final January 19, 1968. Specifically, plaintiff alleged that defendant had failed to make payments to her in the amount of $1,040, representing support from September 26, 1969 to March 27, 1970, the date of her remarriage, and $12,203.67, representing arrearages for payments on account of a mortgage on the former marital residence which accrued between October 1, 1969 and July 31, 1975. The trial judge entered an order fixing arrearages in the sums demanded by plaintiff. It is from this order that defendant appeals.

Plaintiff and defendant were married in 1945. Three children were born of this marriage. On May 18, 1967 the parties entered into a "Property Settlement Agreement," the first provision of which reads as follows:

1. This agreement is intended and shall be construed to be a settlement agreement entered into between the parties to settle their property rights and in addition thereto that provisions be made for the support and maintenance of the children and all other rights and obligations growing out of the marriage relation. [Emphasis supplied]

The operative and pertinent provisions of this agreement are summarized as follows:

(a) Defendant agreed to convey his interest in the marital home to plaintiff.

(b) Defendant agreed to pay to plaintiff the sum of $80 a week for her support and maintenance, which payments would cease upon her remarriage.

(c) Defendant agreed to pay to plaintiff $30 per week for the support of each of their three children.

(d) Defendant agreed to pay the principal and interest on the mortgage on the former marital home, as well as property taxes,

fire and liability insurance thereon, and repairs up to $300 annually, which payments were to cease when the principal balance due on the mortgage had been reduced to $4,876.56. Defendant's liability for repairs, taxes and insurance was to continue only as long as plaintiff remained unmarried and actually resided on the premises; his liability, however, for mortgage principal and interest would continue notwithstanding plaintiff's remarriage or her death.

This agreement was incorporated in the judgment nisi entered on June 29, 1967. Plaintiff remarried on March 27, 1970. On July 21, 1971 defendant filed a voluntary petition in bankruptcy. Plaintiff was listed as a creditor. On November 8, 1971 an order of discharge of bankrupt was entered.

Defendant contends here, as he did before the trial court, that the adjudication in bankruptcy discharged all provable debts, excluding those representing liabilities "for alimony due or to become due, or for maintenance or support of wife or child." 11 U.S.C.A. ยง 35(a)(7). Hence, those portions of the agreement pertaining to payments on account of mortgage principal and interest, stipulated in the agreement to survive plaintiff's remarriage and her death, cannot be viewed as alimony or support since they lack the essential attributes thereof and were therefore discharged in bankruptcy. As to the portions of the agreement clearly pertaining to support, those which would terminate on remarriage or death, and which were stated ...


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