Tolbert v. Teets
27 Pa. D. & C.3d 106
Pa.Com.Pl. 1983.
Court of Common Pleas of Pennsylvania, Beaver County.
Tolbert
v.
Teets
No. 469 D.R. of 1982.
June 21, 1983
Petition for rehearing of support order.
A Separation Agreement granting a wife monthly alimony unless she remarries or cohabits with another male is to be enforced despite the wife's engaging in occasional acts of sexual intercourse.
J. Lauson Cashdollar, for plaintiff.
Claude Falkenham, for defendant.
WALKO, J.
Currently before the court is a petition for rehearing filed by defendant, Kenneth Teets, in regard to an order entered by this court on January 13, 1983 dismissing his petition for an order relieving him from his duty to pay alimony. The January 13, 1983 order was entered after a full hearing which resulted in the finding by this court that plaintiff, Ellen Tolbert, did not breach a separation agreement by remarrying or cohabitating with another male as those terms are used in the Divorce Code of 1980.
Defendant's current petition is premised on alleged newly discovered evidence. A rule was issued on plaintiff on February 7, 1983 to show cause why our January 13, 1983 order should not be vacated. A full hearing was then held on March 23, 1983. After careful consideration of the testimony produced at hearing and after review of the briefs submitted by *107 opposing counsel, this court concludes for the following reasons that the rule must be discharged and our order of January 13, 1983 remain in full force and effect.
The pertinent facts are as follows. Ellen Tolbert and Kenneth Teets were married in March, 1975. During the marriage two children were born, one in 1978 and one in 1979. The parties subsequently separated and retained private counsel in an attempt to finalize a no-fault divorce in Butler County. In contemplation of that divorce, the parties entered into a separation, support, alimony and property settlement that had been drafted by counsel for defendant. That agreement was formally adopted and made an order of the Butler County Court on August 6, 1981. The parties were subsequently divorced on January 11, 1982.
In May 1982, defendant without notice or court approval terminated alimony payments to plaintiff. The matter was subsequently transferred to Beaver County where on September 29, 1982, the Domestic Relations Section of this court attached defendant's wages because of his non-compliance. Shortly after this development, defendant and his legal counsel appeared ex parse in the court's chambers to strongly protest the attachment order. The court pointed out that the proper procedure to follow would be for defendant to petition the court to dissolve the attachment and terminate the order, after a full and complete hearing on all the facts with the parties and their counsel present. Defendant then petitioned this court to dissolve the attachment and relieve him from his duty to pay alimony under the order/agreement.
**2 *108 The point of contention throughout these proceedings has been Paragraph 11 of that agreement.
In its entirety, it states:
(11) Husband agrees to pay Wife during the minority of the parties' Children or until Wife remarries or cohabits with another male, if such marriage or cohabitation occurs sooner, the sum of three hundred dollars ($300.00) per month which sum shall be considered alimony, and which Wife hereby agrees is in lieu of all other future payments for Wife's support except any other payments specifically provided for in this Agreement. Wife hereby waives all further or future claims against Husband for her separate support and maintenance, except demand that the amounts be paid which Husband agrees in this Agreement to pay to Wife, and Wife covenants and agrees to save, defend and hold harmless Husband from the consequences of her failure to do so. The covenants and promises of this numbered paragraph shall be enforced in a manner consistent with the Divorce Code of the Commonwealth of Pennsylvania.
The thrust of defendant's complaint here and in earlier proceedings has been that plaintiff has cohabitated with defendant's brother since the date of the separation agreement and has therefore forfeited her right to alimony under that agreement. Although the agreement does not define cohabitation, defendant steadfastly maintains that the term is synonymous with an act of sexual intercourse.
On November 30, 1982, a full hearing was held on defendant's petition. Thereafter, we concluded that plaintiff did not remarry nor cohabit with another male as those terms are used in the Divorce *109 Code of 1980 on or after August 6, 1981, the date the settlement agreement was entered as an order of court. Defendant's petition was therefore dismissed by our January 13, 1983 order.
Defendant did not appeal from that order. Instead, he filed the petition for re-hearing that is the subject of this opinion.
To secure a new trial or re-hearing on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence. The evidence must not be cumulative or merely impeach credibility and must be such as would likely compel a different result. Townsend Will, 436 Pa. 185, 258 A.2d 518 (1969). Similarly to secure a new trial on the ground of discovery that false testimony was given at trial the complaining party must be able to meet the general test applied to applications for a new trial on the ground of after- discovered evidence. Limper v. Philadelphia Electric Co., 297 Pa. 204, 146 A.574 (1929)
In his petition for rehearing, defendant indicated that his brother David would recant prior sworn testimony and would now admit that he did cohabit with plaintiff during the period she was receiving alimony under the agreement. Defendant also indicated that he had recently discovered two witnesses who would present credible evidence as to cohabitation between plaintiff and David Teets.
**3 At the March 22, 1983 hearing, the matter of whether or not the brother David had been advised of the serious criminal consequences of rendering false testimony had been explained to him were raised. Counsel for both parties informed the court that they agreed he should be so advised and that *110 neither had done so. It is noteworthy that David was present without legal counsel. The legal counsel for defendant requested that the court do so and a partial "colloquy" was undertaken by the court with great reluctance. A recess was requested after which the court was advised that David Teets would not testify. As such, that witness's prior testimony that he had not cohabitated with plaintiff remained unrebutted. Furthermore, the testimony of the other two witnesses called by defendant has not satisfied this court that a rehearing should be granted. Robert Klear, a former roommate of David Teets testified that David slept at their apartment only 30 percent of the time. On cross-examination, however, he admitted that David Teets spent time at his marital home with his former wife. He further testified that he only occasionally reached David at the home of plaintiff.
Gary Radar testified that he knew that David was living with plaintiff. He also testified that on one occasion he had helped David Teets remove articles of furniture and some bags of clothing from plaintiff's apartment back to his marital home. Doubt was cast on this witness's knowledge when he admitted on cross-examination that he had only been to plaintiff's apartment on the date he helped David move furniture; that he had never attempted to call or reach David Teets at plaintiff's apartment, and that he had never conducted any surveillance to support his contention that David cohabitated with plaintiff. This witness also did not know how long David Teets clothes had been in plaintiff's apartment.
Finally, defendant called plaintiff as on cross-examination. While he elicited from her that David removed a bed, television and clothes from her apartment, she later explained that those articles of *111 furniture were only being stored there and that she had washed David's clothes as a favor to him.
We are not satisfied that such evidence warrants a new hearing. It adds nothing new to the facts that lead to our January 13, 1983 order. In its entirety, the facts show no more than that plaintiff did date defendant's brother after the separation agreement was signed; that David Teets did spend time at plaintiff's house; that they on occasion had sexual intercourse; and that while dating plaintiff, David Teets maintained a separate residence. In our mind, such conduct is not cohabitation.
While the separation agreement by its very terms is to be enforced in a manner consistent with the Divorce Code, neither the agreement nor the code defines the term cohabit or cohabitation.
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