J-A09034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.K.P.                                     :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                     Appellee              :
                                           :
              v.                           :
                                           :
K.M.P.                                     :
                                           :
                     Appellant             :          No. 1007 MDA 2016

                        Appeal from the Order May 17, 2016
                   In the Court of Common Pleas of York County
                    Civil Division at No(s): 2008-FC-000584-15


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED SEPTEMBER 20, 2017

      Appellant, K.M.P. (“Husband”), appeals from the order entered in the

York County Court of Common Pleas, which granted the petition of Appellee,

S.K.P. (“Wife”), for special relief, contempt, and enforcement. We affirm in

part, vacate in part, and remand for further proceedings.

      The relevant facts and procedural history of this case are as follows.

The parties were married in February 1992, and are the parents of three

children. Wife initiated divorce proceedings in 2008. On March 25, 2009,

the parties entered into an Agreement for Order of Support (“2009 Support

Agreement”).       The 2009 Support Agreement provides in relevant part as

follows:


                                   *   *       *

           3. [Husband]’s Child Support Obligation. The parties
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         agree that [Husband] shall pay [Wife] child support in the
         amount of $2,300.00 per month payable in biweekly
         installments of $1,061.54. The parties further agree that
         [Husband] shall continue to pay this sum to [Wife] until
         the parties’ youngest child graduates from high school or
         turns eighteen (18) years of age, whichever event shall
         occur last except as otherwise set forth below.

         4. Post-Secondary Education. As each child reaches
         age eighteen (18) or graduates from high school,
         whichever event occurs last for each child, the amount of
         child support payable to [Wife] shall be reduced by 1/3
         (one-third) or $767.00 per month. As each child reaches
         age eighteen (18) or graduates from high school,
         [Husband] shall deposit the amount of $767.00 into an
         account with the appropriate child’s name on the account
         for the child’s sole and exclusive use and benefit.

         5. Termination.     [Husband]’s obligation to pay child
         support to [Wife] shall terminate in its entirety when the
         youngest child turns eighteen (18) or graduates from high
         school, whichever event shall occur last.

                                *    *    *

(Agreement for Order of Support, dated 3/25/09, at 2).        The Domestic

Relations Office entered a Final Order of Support on June 18, 2009, based on

the terms of the 2009 Support Agreement, with certain conditions:

         Other Conditions:

         IT IS NOTED THAT THE PARTIES[’] AGREEMENT CONTAINS
         PROVISIONS WHICH ARE NOT ENFORCEABLE THROUGH
         THIS OFFICE.    THESE PROVISIONS ARE REGARDING
         PAYMENTS TO EMANCIPATED CHILDREN AND PAYMENT OF
         30% OF [HUSBAND’S] GROSS BONUSES.

         IT IS NOTED THAT [HUSBAND] SHALL CLAIM [B.P.] AS A
         DEPENDENT FOR TAX PURPOSES.

(Id. at 3).


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        During the divorce proceedings, the parties also entered into a

Property Settlement Agreement (“PSA”) and executed an Addendum to the

PSA.     The court entered a divorce decree on December 30, 2010, that

incorporated without merging the       PSA and Addendum to        the   PSA.

Subsequently, the parties executed a Second Addendum to the PSA on June

1, 2011.     The court entered an order on June 29, 2011, incorporating

without merging the Second Addendum to the PSA into the divorce decree.

The Second Addendum to the PSA provided, inter alia, Wife would receive a

portion of Husband’s distribution from his deferred compensation retirement

plan, upon termination of his employment. Under the Second Addendum to

the PSA, Wife was entitled to sixty-five (65%) of Husband’s marital

contributions to the plan, as of December 2011, in the amount of

$94,246.02. Wife would also be entitled to sixty-five percent (65%) of the

appreciation (or subject to depreciation) of Husband’s marital contributions

to the plan until termination of employment.

        The parties’ oldest child, B.P., graduated from high school in June

2011.     In the fall of 2011, B.P. matriculated as a full-time student at a

university for one school year. Wife made payments toward B.P.’s tuition.

Husband failed to make monthly payments to B.P., in violation of the 2009

Support Agreement, until July 2012.            Subsequently, Husband made

payments to B.P. in amounts less than $767.00, until September 2014,

when Husband suffered a stroke. Husband’s stroke rendered him unable to


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continue working.

      On July 22, 2015, Wife filed a petition for special relief, contempt, and

enforcement.   In her petition, Wife requested the court, inter alia, to: (1)

find Husband in contempt for failure to comply with the 2009 Support

Agreement; (2) direct Husband to reimburse Wife for her payment of B.P.’s

college tuition in the amount of $14,254.00 for 2011-2012; and (3) direct

Husband to distribute to Wife her share of Husband’s deferred compensation

plan per the Second Addendum to the PSA.

      The parties appeared before the court on November 19, 2015, and

resolved on the record some other issues Wife had presented in her petition.

On February 17, 2016, Wife filed a second petition for special relief,

contempt, and enforcement, noting several of her complaints from her July

2015 petition remained outstanding. The court held hearings on March 22,

2016, and April 25, 2016; Husband’s power of attorney testified and Wife

testified.

      The court granted Wife some relief on May 17, 2016. Regarding the

post-separation growth of Husband’s deferred compensation plan, the court

found Wife was entitled to sixty-five percent (65%) of the post-separation

growth of the plan or $90,671.81; but Wife had to reimburse Husband for

ten percent (10%) of it, or $9,671.18, toward the federal taxes he paid on

it. As a result, the court ordered Husband to pay Wife $81,604.63, as Wife’s

net share of the post-separation growth of Husband’s marital contributions


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to his deferred compensation plan.          Regarding B.P.’s post-secondary

education   expenses,   the   court   directed   Husband   to   reimburse   Wife

$14,254.00 for the tuition she paid on behalf of B.P. for 2011-2012.

     Husband filed a motion for reconsideration on May 27, 2016, which the

court denied. Husband timely filed a notice of appeal on June 16, 2016. On

July 12, 2016, the court ordered Husband to file a concise statement of

errors complained of on appeal per Pa.R.A.P. 1925(b); Husband timely

complied on August 1, 2016.

     Husband raises three issues for our review:

        WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
        AND ABUSED ITS DISCRETION BY ENFORCING THE
        MARCH 25, 2009 AGREEMENT FOR ORDER OF SUPPORT
        AS IT RELATES TO POST-SECONDARY EDUCATION, AS IT
        WAS A SUPPORT AGREEMENT WHICH WAS CONVERTED
        TO A SUPPORT ORDER AND AS SUCH IS NOT
        ENFORCEABLE UNDER PENNSYLVANIA LAW[?]

        WHETHER, IN THE ALTERNATIVE, IF SUCH AN AGREEMENT
        IS ENFORCEABLE, THE TRIAL COURT ERRED AS A MATTER
        OF LAW AND COMMITTED AN ABUSE OF DISCRETION IN
        REACHING CONCLUSIONS THAT ARE NOT SUPPORTED BY
        THE RECORD AND WHICH DO NOT SUPPORT THE RELIEF
        GRANTED?

        WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
        DISCRETION IN CALCULATING FAIR AND EQUITABLE TAX
        CONSEQUENCES FOR WIFE FOR HER SHARE (65%) OF
        THE DISTRIBUTION FROM THE DEFERRED COMPENSATION
        PLAN WHERE THE SECOND [ADDENDUM TO THE
        PROPERTY   SETTLEMENT   AGREEMENT]   FAILED   TO
        ADDRESS TAX CONSEQUENCES BETWEEN THE PARTIES
        AND THE TRIAL COURT ESSENTIALLY AWARDED WIFE HER
        SHARE FROM GROSS DISTRIBUTION WITH NO TAX
        CONSEQUENCES?


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J-A09034-17


(Husband’s Brief at 4).

      In his first issue, Husband argues the parties’ 2009 Agreement for

Order of Support at issue is basically unenforceable. Specifically, Husband

claims the 2009 Support Agreement was a prelude to a Support Order and

destined to become the Support Order, which functionally supplanted the

2009 Support Agreement. Husband accedes that the June 2009 Final Order

of Support memorializes the 2009 Support Agreement.          He complains,

however, that the Final Order, by its own conditions, cannot be used to

enforce those terms of the 2009 Support Agreement regarding payments to

his emancipated children.     Husband contends he contracted only for the

entry of a Support Order and, once the order was entered consistent with

the terms of the 2009 Support Agreement, the 2009 Support Agreement

was complete and fulfilled.   Husband further maintains the 2009 Support

Agreement cannot be enforced separately because it was not a “post-

nuptial” agreement that settled all of the parties’ property matters and

claims. Husband contends only a final agreement of that nature can bind a

party to pay for a child’s post-secondary education expenses, citing Reif v.

Reif, 626 A.2d 169 (Pa.Super. 1993), and the 2009 Support Agreement at

issue here is not a final “post-nuptial” agreement. Husband concludes this

Court should vacate the trial court’s order because the 2009 Support

Agreement is unenforceable and no longer binding. We disagree.




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J-A09034-17


     “Pennsylvania law permits support orders and private agreements for

support to coexist and be enforced separately. Private support agreements

are subject to contract principles and enforceable in an action at law for

damages or in equity for specific performance.” Nicholson v. Combs, 550

Pa. 23, 42, 703 A.2d 407, 417 (1997); Sams v. Sams, 808 A.2d 206, 211

(Pa.Super. 2002). The action at law for damages might include the unpaid

amount of support plus interest, whereas relief in equity for specific

performance seeks an order directing the payor to comply with his support

obligations under the agreement.    Id.   A civil contempt complaint is an

appropriate mechanism to enforce a child support agreement. 23 Pa.C.S.A.

§ 3105 (stating: “A party to an agreement regarding matters within the

jurisdiction of the court under this part, whether or not the agreement has

been merged or incorporated into the decree, may utilize a remedy or

sanction set forth in this part to enforce the agreement to the same extent

as though the agreement had been an order of the court except as provided

to the contrary in the agreement”); Love v. Love, 33 A.3d 1268 (Pa.Super.

2011).   “The powers of a domestic relations judge are plenary and the

function is that of a law judge or equity chancellor as the case demands.”

Horowitz v. Horowitz, 600 A.2d 982, 984 n.1 (Pa.Super. 1991).

     Nothing in Pennsylvania law requires parents to support their children

beyond the age of majority. Blue v. Blue, 532 Pa. 521, 529, 616 A.2d 628,

633 (1992) (stating: “[N]otwithstanding a child reaching majority at age 18,


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J-A09034-17


a parental duty of support is owed until a child reaches 18 or graduates from

high   school,   whichever   event   occurs   later”).   Likewise,   nothing   in

Pennsylvania law prohibits parents from agreeing to pay the educational

expenses of their non-minor children; in that context, the obligation is

contractual.     W.A.M. v. S.P.C., 95 A.3d 349, 352-53 (Pa.Super. 2014)

(providing party can contractually assume duty to support child’s post-

secondary education).

         [A] party may contractually assume a duty to support
         his…child’s post-secondary education. This is so, despite
         Blue’s holding that there is no legal duty to provide post-
         secondary educational support. Since Father’s support
         obligation in this case is defined in the post-nuptial
         agreement, his duty is contractual, not legal. We must
         apply the law of contracts to interpret father’s duty and, of
         course, the intent of the parties will control.

Reif, supra at 173 (internal citations omitted).

       The language of a contract “should be interpreted in the light of the

subject matter, the apparent object or purpose of the parties and the

conditions existing when it was executed.” Hart v. Arnold, 884 A.2d 316,

333 (Pa.Super. 2005), appeal denied, 587 Pa. 695, 897 A.2d 458 (2006).

“When the words of a contract are clear and unambiguous, the meaning of

the contract is ascertained from the contents alone.”      Chen v. Chen, 586

Pa. 297, 307, 893 A.2d 87, 93 (2006).         “If left undefined, the words of a

contract are to be given their ordinary meaning.” Kripp v. Kripp, 578 Pa.

82, 90, 849 A.2d 1159, 1163 (2004). “In the absence of an ambiguity, the

plain meaning of the agreement will be enforced.”        Murphy v. Duquesne

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J-A09034-17


University Of The Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 430

(2001).   “The meaning of an unambiguous written instrument presents a

question of law for resolution by the court.” Id. In that context,

          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.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007) (quoting

Stamerro v. Stamerro, 889 A.2d 1251, 1257-58 (Pa.Super. 2005) (some

internal citations omitted).

      Instantly, the parties executed the 2009 Support Agreement at issue

on March 25, 2009. The Domestic Relations Office entered a Final Order on

June 18, 2009, based on the terms of the parties’ 2009 Support Agreement.

The parties entered into the 2009 Support Agreement with the intent that

the court would subsequently enter a support order, but the entry of the

support order did not automatically render the 2009 Support Agreement

unenforceable.   See Sams, supra.      Husband’s reliance on Reif, supra is

misplaced. Nothing in Reif holds that a parent’s obligation to pay for post-

secondary education expenses is enforceable only if that obligation arises

from a “post-nuptial” agreement which settles all of the parties’ claims. See

id.   Instead, Reif stands only for the general proposition that a parent’s

duty to support post-secondary education expenses can arise from a


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J-A09034-17


contract, even if it does not arise under law.    Id. at 173 (stating: “Since

Father’s support obligation in this case is defined in the post-nuptial

agreement, his duty is contractual, not legal”).      Therefore, even if the

parties’ 2009 Support Agreement is not a “post-nuptial” agreement, as

defined by Husband, which settled all of the parties’ claims, it is nonetheless

a contract obligation sufficient to require Husband to provide B.P. with post-

secondary education support. Id. Similarly, we reject Husband’s suggestion

that the 2009 Support Agreement was just a prologue to a support order,

where neither the law nor the record validates that interpretation. Thus, the

post-secondary education support provision in the parties’ 2009 Support

Agreement prevails, and Husband’s first issue merits no relief.

      In his second issue, Husband avers that even if the 2009 Support

Agreement is enforceable, it did not require Husband to pay post-secondary

education tuition for B.P. Husband maintains the 2009 Support Agreement

only obligated him to deposit into B.P.’s account funds for B.P.’s exclusive

use and benefit, not necessarily for B.P.’s tuition. Husband posits the 2009

Support Agreement required him to pay post-secondary education expenses

of $767.00 per month, or $9,204.00 for the year B.P. attended college.

Husband concludes the trial court erred when it directed Husband to

reimburse Wife for missed tuition payments in the amount of $14,254.00.

We agree in part.

      Instantly, regarding Husband’s obligation to pay for B.P.’s post-


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J-A09034-17


secondary education expenses, the trial court reasoned as follows:

         [Husband] entered into [the 2009 Support Agreement]
         with Wife to pay post-secondary education expenses for
         [B.P.].     The [Support] Agreement is clear and
         unambiguous, and therefore, the [c]ourt need not look
         beyond the written agreement. [Husband] has breached
         his obligation to pay the support for post-secondary
         education to [B.P.], as bargained for by [Husband] and
         [Wife]. [Wife] has the ability to enforce the obligation,
         and recover the monies she paid for [B.P.]’s post-
         secondary education….

(Trial Court Opinion, filed August 19, 2016, at 3-4) (internal citations

omitted).   As to the amount Husband must reimburse Wife, the court

determined Husband owed Wife $14,254.00, the amount Wife paid toward

B.P.’s tuition.   The record supports the court’s rationale concerning:

Husband’s obligation to provide B.P. support for post-secondary education

expenses; Husband’s breach of that obligation; and Wife’s right to enforce

the 2009 Support Agreement and recover from Husband some of what she

paid toward B.P.’s tuition.   The record, however, does not support the

court’s determination of the amount Husband must reimburse Wife under

the 2009 Support Agreement.

      The 2009 Support Agreement provides in part:

         4. Post-Secondary Education. As each child reaches
         age eighteen (18) or graduates from high school,
         whichever event occurs last for each child, the amount of
         child support payable to [Wife] shall be reduced by 1/3
         (one-third) or $767.00 per month. As each child reaches
         age eighteen (18) or graduates from high school,
         [Husband] shall deposit the amount of $767.00 into an
         account with the appropriate child’s name on the account
         for the child’s sole and exclusive use and benefit.

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J-A09034-17



(Agreement for Order of Support, dated 3/25/09, at 2). The record indicates

B.P. incurred college tuition expenses for the 2011-2012 academic year,

beginning in July 2011. The 2009 Support Agreement obligated Husband to

contribute $767.00 per month for each month B.P. was engaged in post-

secondary education.     Thus, the maximum amount Husband had to

contribute toward B.P.’s college expenses was $9,204.00 ($767.00 per

month for 12 months).     Therefore, the trial court erred when it ordered

Husband to reimburse Wife in the amount of $14,254.00. See Kraisinger,

supra.

     Additionally, Wife alleged in her enforcement petition that Husband

failed to make any payments to B.P. until June 2012, but Wife’s testimony

indicated Husband might have made some payments to B.P. during the

2011-2012 academic year. (See N.T. Hearing, 4/25/16, at 20.) The record,

however, does not disclose what amount, if any, Husband paid toward B.P.’s

post-secondary expenses in 2011-2012.       Accordingly, we vacate the trial

court’s order to the extent it directs Husband to reimburse Wife in the

amount of $14,254.00 for B.P.’s tuition, and remand for the court to fix the

amount Husband actually failed to contribute to B.P.’s post-secondary

education expenses in 2011-2012, not to exceed $9,204.00.

     In his third issue, Husband argues that, when the parties executed the

Second Addendum to their PSA, they mistakenly believed they could

separate the deferred compensation plan into two distinct funds. Husband

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J-A09034-17


avers the parties’ interests could be divided instead only upon distribution to

Husband. Husband insists the parties suffered a mutual mistake as to how

the deferred compensation funds could be allocated and distributed. Under

contract principles, Husband contends the court could rescind or reform the

Second Addendum to the PSA.             Husband points out that the Second

Addendum to the PSA did not expressly state how the parties would bear the

tax consequences which arose upon distribution of Husband’s deferred

compensation plan. Husband claims he paid all of the taxes on the entire

distribution, including Wife’s share.   Husband complains the court erred in

attributing Wife’s share of the taxes at the lowest tax rate of 10%, for a

single person under the IRS tax tables of 2015, when her actual tax rate

should be higher and could be as high as 28%. Husband submits the parties

presented no evidence regarding Wife’s federal income tax rate.       Instead,

Husband avers the court allowed Wife to take 65% of Husband’s deferred

compensation distribution with only a limited tax liability of 10%, which is

inequitable, erroneous, and represents a windfall to Wife.            Husband

concludes we should vacate and remand for further proceedings to calculate

the proper tax liability for each party. For the following reasons, we cannot

agree.

      As a preliminary matter, we must decide if Husband properly

preserved his third issue for appellate review. See Tucker v. R.M. Tours,

939 A.2d 343, 346 (Pa.Super. 2007), aff’d, 602 Pa. 147, 977 A.2d 1170


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J-A09034-17


(2009) (stating appellate court may raise issue of waiver sua sponte). The

appellant has the responsibility to provide a complete record for review.

Conner v. DaimlerChrysler Corp., 820 A.2d 1266, 1273 (Pa.Super. 2003).

This Court is limited to considering only those materials which have been

certified in the record on appeal. Pa.R.A.P. 1921. See also Everett Cash

Mut. Ins. Co. v. T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa.Super. 2002)

(stating: “[T]hose documents which are not part of the ‘official record’

forwarded to this Court are considered to be non-existent”). In other words,

if a claim depends on materials which are not in the certified record, the

claim is waived. Stewart v. Owens-Corning Fiberglas, 806 A.2d 34, 37

n.3 (Pa.Super. 2002) (stating: “The failure of the appellant to ensure that

the original record certified for appeal contains sufficient information to

conduct a proper review may constitute a waiver of the issues sought to be

examined”). “When the appellant has failed to preserve issues for appeal,

the issues are waived, and the…court’s order is more properly ‘affirmed.’”

In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (noting

when appellant has waived issues on appeal, appellate court should affirm

trial court’s decision, not quash appeal).

      Instantly, Husband failed to ensure we had a complete record

necessary for appellate review.      To begin, the certified record does not

contain the following: the PSA; the Addendum to the PSA; the divorce

decree; the Second Addendum to the PSA; the order incorporating the


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J-A09034-17


Second Addendum to the PSA into the divorce decree; statements reflecting

Husband’s contributions to the deferred compensation plan; Husband’s 2015

tax returns; and Wife’s 2015 tax returns.            Absent these documents, we

cannot conduct meaningful appellate review of Husband’s tax issue which, as

presented, remains theoretical and speculative.1          If these documents were

not even offered to the trial court, (which would explain why they are also

missing from the record), how can we fault the court’s discretionary decision

to assess Wife with a tax liability of 10%, applied only to the growth portion

of the deferred compensation plan?             Therefore, we deem Husband’s third

issue waived. See Conner, supra; Stewart, supra.

       Order affirmed in part and reversed in part; case remanded with

specific instructions. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2017


____________________________________________


1
  See, e.g., Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162, 165
(1990) (stating: “Contracting parties are normally bound by their
agreements, without regard to whether the terms thereof were read and
fully understood and irrespective of whether the agreements embodied
reasonable or good bargains”).



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