Brown, J. v. Brown, W.

J-S40002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER BROWN, IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

WILLIAM BROWN,

Appellant No. 571 WDA 2018

Appeal from the Order Dated April 2, 2018

In the Court of Common Pleas of Allegheny County

Family Court at No(s): F.D. No. 17-004670-005

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 09, 2019

William Brown (Husband) appeals from the April 2, 2018 trial court order

that denied the exceptions he filed to the Hearing Officer’s Report and

Recommendations, dated December 5, 2017, relative to an order of child

support to be paid by Husband to Jennifer Brown (Wife) for the support of the

parties’ two children. For the reasons set forth below, we affirm.

The trial court provided the following factual and procedural history of

this matter, stating:

The parties were married on March 1, 1998, and separated on

February 1, 2015 after 16 years and 11 months of marriage. A

divorce action was filed by Wife in the Court of Common Pleas of

Mercer County at No. 2015-882. Husband filed a Petition Raising

Economic Claims, including spousal support, [Alimony Pendente

Lite (APL)] and alimony. Wife filed a complaint for child support.

On August 26, 2015, the Mercer County Court entered an [o]rder

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* Retired Senior Judge assigned to the Superior Court.

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providing for monthly child support in the amount of $903.49. On

October 16, 2017, [t]he [c]ourt entered an [o]rder for Spousal

Support/APL in favor of Husband. In the October 16 order, the

[c]ourt found that as “the obligation for spousal support owed by

Jennifer Brown to William Brown exceeds that of child support

owed by William Brown to Jennifer Brown, the child support order

... was terminated effective August 26, 2015.”

On or about November 23, 2016, the parties entered into a

comprehensive Marriage and Property Settlement Agreement

(hereinafter, the “MSA”), which encompassed all issues for

property settlement, spousal support, APL, alimony and child

support utilizing the support calculations as found by the [c]ourt.

The MSA contains the following relevant provisions:

7. Spousal Support. Alimony Pendente Lite,

Alimony and Counsel Fees—It is respectfully agreed that

neither Husband nor Wife will petition the [c]ourt for an

Order against the other for Counsel Fees, Alimony,

Alimony Pendente Lite and/or Spousal Support, it being

expressly understood and agreed that the financial and

property arrangements made hereunder are in lieu of any

such claims, now or at any time in the future, and as such

are NON-MODIFIABLE in all respects, with all other

claims to counsel fees, alimony, spousal support, and

alimony pendente lite being hereby WAIVED by the

parties. Husband shall dismiss the Spousal Support/APL

action brought against Wife within seven (7) days of the

execution of this Agreement and forgive any back

spousal support/APL to which he may have been entitled.

8. Child Support—Wife agrees not to file for child

support for a period of five (5) years from the date of this

Agreement given Husband’s waiver to alimony provided

for in Paragraph 7 above and the disparity in the earnings

capacity of the parties. The parties agree that after said

five (5) year period from the date of execution of this

Agreement, they shall handle the payment of child

support between themselves privately outside of the

Family Division.

Wife subsequently filed for child support in Allegheny County, and

at the duly scheduled hearing on her petition, the Hearing Officer

declined to give her imprimatur to the parties’ child support

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agreement, finding it to be violative of Pennsylvania public policy

on ensuring the enforceability of child support obligations owed to

its citizens. [Husband] filed timely Exceptions to that

determination, arguing that the Hearing Officer had committed

reversible error by failing to enforce the parties’ MSA and by failing

to award counsel fees.

Trial Court Opinion (TCO), 3/28/19, at 1-2.

Upon review, the trial court adopted the Hearing Officer’s Report and

Recommendation, entering it as a final order of court. In its opinion, the trial

court explained its reasoning, as follows:

This [c]ourt was not persuaded by any of the evidence or

testimony in the record or at the Exceptions Argument that the

Hearing Officer committed any material error or omission or any

abuse of discretion. Counsel for [Husband] correctly notes that

there exist some exceptions to the general rule, from Kesler v.

Wininger, 744 A.2d 794, 796 (Pa. Super. 2000), that “a parent

cannot bind a child or bargain away that child’s right to support,”

but [c]ounsel fails to demonstrate that the case at hand falls

within the scope of any of those exceptions. Neither Roberts v.

Furst, 385 Pa. Super. 530, 561 A.2d 802 (1989), nor Kraisinger

v. Kraisinger, 928 A.2d 333, 340 [(]Pa. Super. 2007), both of

which are cited for the proposition that “parties can make an

agreement as to child support if it is fair and reasonable, made

without fraud or coercion, and does not prejudice the welfare of

the children,” can avail [Husband] the instant case. Absent

sufficient evidence in the record to support a finding that the MSA

child support provision was fair and reasonable, that it was made

without fraud or coercion, and that it does not prejudice the

welfare of the children, the Hearing Officer correctly determined

that the purported limitation on child support violated

Pennsylvania public policy, and this [c]ourt declined [Husband’s]

invitation to disturb that determination. [Husband] similarly failed

to persuade the [c]ourt that an award of counsel fees was

appropriate in this circumstance.

This [c]ourt concluded, and remains convinced on appeal,

that the Report and Recommendations reflected the Hearing

Officer’s reasonable efforts to resolve the parties’ claims in light

of the Commonwealth’s interest in enforcing child support

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obligations for its citizens. The [c]ourt agrees with the Hearing

Officer’s conclusion that the child support provision of the parties’

MSA was inconsistent with the public policy of the Commonwealth,

and that neither party was entitled to counsel fees.

TCO at 3-4.

Now, on appeal, Husband raises two issues for our review:

1. Whether the trial [court] erred as a matter of law and abused

its discretion in entering a support order against [Husband] in

contravention of the parties[’] agreed marital settlement

agreement dated November 23, 2016?

2. Whether the trial court erred as a matter of law and abused its

discretion in failing to award counsel fees in contravention of §

12 of the parties[’] agreed marriage and property settlement

agreement dated November 23, 2016?

Husband’s brief at 2.1

This Court’s review of a marital settlement agreement is governed by

the following:

The following legal principles are applicable in the review of

a marriage settlement agreement. “A marital support agreement

incorporated but not merged into the divorce decree survives the

decree and is enforceable at law or equity. A settlement

agreement between spouses is governed by the law of contracts

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1 Initially, in her brief, Wife suggests that Husband has waived all issues on

appeal in that (1) he failed to file a statement of errors complained of on

appeal and that (2) he failed to properly designate the reproduced record.

Wife’s contentions are without merit. The trial court here did not issue an

order requiring the submission of a statement. See Commonwealth v.

Antidormi, 84 A.3d 736, 745 n.7 (Pa. Super. 2014) (stating “[t]he

requirements of Rule 1925(b) are not invoked in cases where there is no trial

court order directing an appellant to file a Rule 1925(b) statement”). Despite

some deficiencies in the reproduced record, this Court is able to review the

issues Husband has raised on appeal. See also Wells Fargo Bank N.A. v.

Spivak, 104 A.3d 7, 10 n.6 (Pa. Super. 2014) (indicating that this Court “will

decline to quash an appeal where effective appellate review is not precluded

by the deficiencies of [a] reproduced record”).

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unless the agreement provides otherwise.” Stamerro v.

Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005) (citations and

quotations omitted).

In conducting our review of the court’s holding as to the

marriage settlement agreement, we remain cognizant of the

following:

Because contract interpretation is a question of law,

this Court is not bound by the trial court’s

interpretation. Our standard of review over questions

of law is de novo and to the extent necessary, the

scope of our review is plenary as the appellate court

may review the entire record in making its decision.

However, we are bound by the trial court’s credibility

determinations.

Id. at 1257-1258 (citations and quotations omitted).

When interpreting a marital settlement agreement,

the trial court is the sole determiner of facts and

absent an abuse of discretion, we will not usurp the

trial court’s fact-finding function. On appeal from an

order interpreting a marital settlement agreement, we

must decide whether the trial court committed an

error of law or abused its discretion.

Id. at 1257 (citations and quotations omitted).

Kraisinger, 928 A.2d at 339.

Husband’s first argument centers on Paragraphs 7 and 8 of the MSA,

which provides that Husband agrees to give up his right to an alimony

payment from Wife to offset Husband’s child support payment to Wife for a

five-year period from the date the parties sign the MSA. Specifically, Husband

asserts that Pa.R.C.P. 1910.16-4(e) provides for this type of arrangement.

Subsection 4(e) provides:

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(e) Support Obligations When Custodial Parent Owes

Spousal Support. If children are residing with the spouse

(custodial parent) obligated to pay spousal support or alimony

pendente lite and the other spouse (non-custodial parent) has a

legal obligation to support the children, the guideline spousal

support or alimony pendente lite amount is determined by

offsetting the non-custodial parent’s child support amount and the

custodial parent’s spousal support or alimony pendente lite

amount, and awarding the net difference either to the non-

custodial parent as spousal support/alimony pendente lite or to

the custodial parent as child support as the circumstances

warrant.[2]

Husband further asserts that the court was aware of the factual basis

underlying the parties’ MSA, namely, the disparity in the parties’ incomes, the

length of the marriage and that Wife owed Husband more in spousal support

than Husband owed Wife in child support. Husband also contends that the

MSA was entered into without fraud or coercion, noting that Wife was

represented by counsel throughout the process and that the MSA would result

in Wife’s saving of $16,675.20 over the five-year period that she would not be

obligated to pay spousal support. Husband concludes his argument relating

to his first issue by stating:

There was never an attempt to “repurpose” the payments for

equitable distribution nor bargain away support. Specific

language was also included as to what happens after 5-years:

[Husband] to pay child support to [Wife]. The parties were aware

that child support is “modifiable” and made specific provisions for

the seamless reinstatement of child support after five years

lapsed. [Husband] was not dodging support but giving up his

alimony every month, which [Wife] was [c]ourt ordered to pay.

The [a]greement clearly did not prejudice the children and was

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2 Subsection (e) further provides the manner in which the child support and

the spousal support are calculated and how they are offset.

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fair and reasonable. To ascertain anything else is very prejudicial

to [Husband], since he gave up his right to [a]limony for 60-

months, claims which he can no longer seek as the Decree in

Divorce was entered by the [c]ourt on December 21, 2016.

Husband’s brief at 14.

In Reber v. Reiss, 42 A.3d 1131 (Pa. Super. 2012), this Court

recognized that

“[i]n Pennsylvania, a parent cannot bind a child or bargain away

that child’s right to support.” Kesler v. Weniger, 744 A.2d 794,

796 (Pa. Super. 2000). Nonetheless, we have also held that

“under Robert [v. Furst, 385 Pa. Super. 530, 561 A.2d 802

(1989)], parties can make an agreement as to child support if it

is fair and reasonable, made without fraud or coercion, and does

not prejudice the welfare of the children.” Kraisinger v.

Kraisinger, 928 A.2d 333, 340 (Pa. Super. 2007).

Id. at 1141.

The trial court recognized that the above statement of the law

controlled, but concluded that there was insufficient evidence in the record to

support a finding that the child support provisions in the MSA were “fair and

reasonable, made without fraud or coercion, and [did] not prejudice the

welfare of the children[.]” TCO at 3. Essentially, and without any citation to

authority, the trial court relied on the Hearing Officer’s determination that the

support provisions in the MSA violated Pennsylvania public policy. We

disagree as to this conclusion in that Subsection (e) provides for the exact

setoff that the parties included in their MSA. However, we are compelled to

examine the specific facts included in the Hearing Officer’s Report and

Recommendation that form the basis for concluding that the provision in the

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MSA “is not reasonable and is prejudicial to the children.” Hearing Officer’s

Report and Recommendation (R&R) at 2.

In granting Wife’s request for child support, the Hearing Officer initially

recognized that Section 3105(b) of the Divorce Code provides that “[a]

provision of an agreement regarding child support, visitation or custody shall

be subject to modification by the court upon a showing of changed

circumstances.” 23 Pa.S.C. § 3105(b). Thus, the Hearing Officer stated:

The change[d] circumstances are[:] 1. both parties[’] income[s]

have increase[d;] 2. [c]ustody was modified after the MSA and

this was relied upon in signing the MSA ([Wife’s Ex. 4);] 3. [c]hild

support guidelines have changed[;] 4. [t]he term regarding child

support is not reasonable and is prejudicial to the children.

Case law supports an agreement that is entered without fraud or

coercion but it is to be fair and re[a]sonable and does not

prejudice the welfare of the children. Kraisinger v. Kraisinger[,]

928 A.2d 333 (Pa. Super. 2007)[.] This court agrees there is no

fraud, coercion or undue influence. However, this term is not fair

and reasonable or a benefit to the children. The original support

order from Mercer [C]ounty dated 8/26/15 has [Wife’s] income

[at] $5,982 and [Husband’s at] $3,307.44. The child support was

$820.49 and [$]118.50 on arrears and fees. Then on October 16,

2015[,] this obligation ended based on [Husband’s] APL claim and

[Wife] was the payor of $277.92 to [Husband] based on the offset

of[]child support. The parties entered their MSA and the APL order

was terminated. Based on their current net incomes [Wife]

$7,712.51 ([g]ross $113,189 + bonus of $16,945.77) and

[Husband] [] $3,883 (base [$]41,350 and annualized overtime

$19,928=$61,278 )[, t]he basic child supp[]ort is $734.44 +

$8.06 for health insuranc[e] for a total of $742.50. Currently

Father pays for only 50% of school supplies and school clothes per

the MSA. This is a significant difference between guideline child

support and paying for clothes and supplies.

The [c]hildren were 11 and 10 in November of 2016 and will be

16 and 15 in five years. [Husband’s] contribution to 50% of

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clothes and school supplies is extremely below what they need for

basic shelter costs.

The current expenses [for which Husband] is responsible is far

from fair and reasonable and it is prejudicial to the welfare of the

children. [Husband] states he is prejudiced as he waived his claim

to alimony and is out of court since the decree is entered. This is

purely speculation as to whether [Husband] would have been

entitled to alimony. The factors for determining alimony are under

23 [Pa.C.S. §] 3701. [Husband] uses his APL amount as

potentially alimony, however that is improper. A review of the

MSA and the assets and debts indicate that Father received 64%

of the assets after the debt for a car was paid. The children’s

welfare is most important. As in Kost v. Kost[,] 757[ A.2d] 952

[(Pa. Super. 2000)], where the amount of child support agreed

upon by mother and father differed from guideline ranges

significantly, in that guideline ranges recommended a support for

child which was 75% more than father was currently paying under

[the] agreement, Superior Court would presume that agreement

did not provide fair and just support. [Husband’s] Exhibit 9

indicates he spen[t] over $700 in October for clothes and

supplies[.] [T]his court finds Father is not spending $700 a month

on these items and he can seek 50% reimbursement per the

agreement if the court found it was valid. [Husband] may want

to bring up the extracurricular [amounts] that he is providing.

[These are] additional expenses and [are] not the basic child

support. Additionally, [Wife] will not have to pay for her

proportionate share.

For all the reasons above and in further argument for public policy,

the children are entitled to a fair portion of [Husband’s] income.

The term set forth in the MSA does not provide for it[;] thus a

child support award is warranted.

R&R at 2-3.

Thus, it is apparent that the Hearing Officer determined that the terms

of the MSA were not fair and reasonable and were prejudicial to the welfare

of the children. Moreover, the trial court concurred with the Hearing Officer’s

decision and based its decision to order Husband to pay on the facts and

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reasoning contained therein. Although we note that parties are entitled to

enter into agreements such as the one that is in controversy here, they are

required to follow the dictates of the Reber decision, quoted above, and

refrain from agreeing to terms that are not fair and reasonable or are

prejudicial to the welfare of the children. See Reber, 42 A.3d at 1141.

Accordingly, we are compelled to decline relief to Husband in relation to his

first argument on appeal.

In his second issue, Husband asserts error by the trial court in failing to

award counsel fees as set forth in Paragraph 12 of the MSA. That paragraph

provides:

8. Default. If either party defaults on any of the terms, provisions

or obligations herein set forth, and it becomes necessary to

institute legal proceedings to effectuate the performance of any

disagreement. Then, the party found to be in default shall pay

reasonable expenses, including reasonable attorney’s fees,

incurred in connection with such enforcement proceedings.

MSA at ¶ 12. Essentially, Husband argues that the terms of the MSA are clear

and that Wife’s filing for child support equated with a default of Paragraphs 7

and 8 of the MSA. Due to the fact that Husband failed to carry his burden to

prove a default by Wife, he is not entitled to an award of attorney’s fees.

Moreover, Wife should not be penalized for pursuing the children’s rights. See

Kraisinger, 928 A.2d at 345.3

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3 We note that in response to this issue, Wife first contends that Husband’s

attorney fees argument was waived in that he did not include it in his

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2019

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exceptions to the Hearing Officer’s Report and Recommendation or in his brief

supporting those exceptions. Our review of those documents belies Wife’s

assertion.

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