A recent case decided by the Dauphin County Court of Common Pleas demonstrates the ingenuity, even if ineffective, with which some litigants attempt to discharge their duties under Marriage Settlement Agreements (MSA). The case was Eugene v. Eugene, 125 Dauph. 384 (2014). In that case, Husband and Wife agreed to a set monthly alimony payment for a period in excess of ten years in the monthly amount of $3,404.00 and a payment of $1,300.00 per month for arrearages which had accrued prior to the divorce. The MSA, after stating the amount to be paid, went on to say that Husband specifically agreed to pay a semi-monthly payment by auto draft from his bank account.
The bank, apparently based on a policy to protect customers from identify theft, refused to put Husband’s social security number on the checks issued to PaSCDU (Pennsylvania State Collections and Disbursement Unit) which requires a social security number in order for it to accept the check. Checks were sent to PaSCDU without the social security number, but were rejected by them.
When the Wife filed indicating that the Husband has breached the MSA, he responded that because it was impossible to fulfill the terms of the contract since his bi-monthly automatically deducted from his bank were being rejected, his payment obligations should be discharged.
Dauphin County Judge Jeannine Turgeon rejected Husband’s argument that it was impossible for him to perform. Construing the MSA as a voluntary contract between the parties, the Court determined that the purpose of the parties was not to have an automatic deduction but rather the payment agreed to between the parties.
When the arrearage got high enough, Husband did make three payments through Dauphin County Domestic Relations. This may have waived Husband’s claim. But even if it did not, the primary intent of the parties was to make the payment, not that the payments be automatic deduction.
While Pennsylvania law recognizes impracticability of performance or frustration as a valid defense, Husband was not entitled to this defense in this case. Performance is made impracticable by the occurrence of an event, the non-occurrence of which was a basic assumption in making the contract. In order for Husband to have won in this case, it would have to be determined that but for the ability to have his bank make the bi-monthly payments to PaSCDU, the MSA would never have been made. The Court found that it is an absurd assertion and not the purpose of the contract. The Court interprets the contracts of MSA to carry out the primary purposes of the parties.