J-S03038-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOSEPH J. FOX,                           :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
LINDA L. FOX,                            :
                                         :
                 Appellant               :     No. 1177 WDA 2016

               Appeal from the Order Entered July 13, 2016
          in the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): 209 of 2002-D

BEFORE:    OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 20, 2017

      Linda L. Fox (Wife) appeals from the order entered July 13, 2016

denying her motion for specific performance.        Specifically, Wife seeks

enforcement of a provision in a marital settlement agreement regarding

payments triggered by certain modifications of a child support order.    We

affirm.

      Wife and Joseph J. Fox (Husband) were married on May 28, 1989.

Subsequent to Husband’s filing of a complaint for divorce, the parties

entered into a marriage settlement agreement dated November 18, 2002.

The agreement provided, in relevant part, the following:

            Husband covenants and agrees to pay Wife child support in
      the amount of [$1,200] per month until such time as the minor
      child obtains the age of [21] and/or obtains a Bachelors or
      equivalent degree, whichever is later. This agreement is non-
      modifiable and incorporated as part of the marriage settlement


*Retired Senior Judge assigned to the Superior Court.
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      agreement. In the event that the Court enters an order for child
      support in an amount less than [$1,200], Husband shall pay to
      Wife the difference between the support order and [$1,200.]

Marriage Settlement Agreement, 11/18/2002, at ¶ 5(F).

      On February 29, 2016, Husband filed a petition for special relief,

requesting, inter alia, that the court “reform the [marriage settlement

agreement] to terminate or limit the duration of the child support payments”

and “to provide that as long as child support is to be paid that it is paid

directly to his son.”   Petition for Special Relief, 2/29/2016, at 3.    After

conducting a hearing on March 29, 2016, and receiving briefs from the

parties, the trial court entered an order, which stated in pertinent part that

“[Husband’s] child support obligation shall cease as of May 31, 2016.”

Order, 5/31/2016, at 1.

      Wife did not appeal the May 31, 2016 order.       Instead, on June 24,

2016, Wife filed a motion for specific performance of the marital settlement

agreement.    In the motion, Wife contended that ¶ 5(F) of the agreement

sets forth two types of payments: (1) a child support payment in excess of

the statutory requirements, which extends past the age of majority until

certain circumstances are met, and (2) a second alternative payment, which

is triggered upon any court entering an order for child support in an amount

less than $1,200. See Motion for Specific Performance, 6/24/2016, at ¶¶ 2-

5. Wife asserted she was entitled to the alternative payment contemplated

by ¶ 5(F) because the trial court’s May 31, 2016 order constituted “an order


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for child support in an amount less than [$1,200]” as set forth by ¶ 5(F) of

the marriage settlement agreement.        See id. at ¶¶ 6-8.     After hearing

argument on Wife’s motion on July 12, 2016, the trial court entered an order

denying the motion without further explanation. Order, 7/12/2016, at 1.1

        Wife timely filed an appeal from the July 12, 2016 order.         Wife

complied with the trial court’s directive to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925. The trial court did not

file an opinion and instead, on August 26, 2016, submitted a letter to this

Court stating it was adopting its memorandum opinion dated May 31, 2016.2

In the letter, the trial court suggests Wife should have appealed the May 31,

2016 order and posits that Wife’s motion for specific performance “is just her

way of getting a second bite at the apple without a record to aid the

Honorable Court in its decision.”     Letter to Superior Court Prothonotary,

8/26/2016, at 1.

        On appeal, Wife contends the trial court abused its discretion or erred

as a matter of law by denying payment to Wife after a “judicial reduction of

child support.” Wife’s Brief at 2. Preliminarily, we agree with the trial court

that, because Wife did not appeal the May 31, 2016 order, the issue of

whether the trial court properly interpreted the marriage settlement



1
    No transcript was made of the motion presentation.

2
 The May 31, 2016 memorandum opinion accompanied its order ruling on
Husband’s petition for special relief.

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agreement when considering Husband’s request to reform the agreement to

terminate or limit his child support payments is not before us.         What is

before us is Wife’s contention that Husband still owes her $1,200 a month

because the May 31, 2016 order constituted “an order for child support in an

amount less than [$1,200]” within the meaning of ¶ 5(F) of the marriage

settlement      agreement,   thereby   triggering   the   alternative   payment

contemplated by ¶ 5(F).

      In considering this issue, we bear in mind that, unless it is merged into

the divorce decree, marital settlement agreements are governed by the law

of contracts.    Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super.

2007).

             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.

Id. (citations omitted).

      The standard of enforceability of a marital settlement agreement is

well settled: “[a]bsent fraud, misrepresentation, or duress, spouses should

be bound by the terms of their agreements.” Crispo v. Crispo, 909 A.2d

308, 313 (Pa. Super. 2006) (quoting McMahon v. McMahon, 612 A.2d

1360, 1363 (Pa. Super. 1992)) (citations omitted). “We are not permitted

to review the reasonableness of a marital settlement agreement to


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determine its validity.” Paroly v. Paroly, 876 A.2d 1061, 1065 (Pa. Super.

2005). A trial court has “neither the power nor the authority to modify or

vary the decree unless there is conclusive proof of fraud or mistake.”

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

      As described above, in his petition for special relief pre-dating the July

12, 2016 order at issue, Husband had requested the trial court reform the

marriage settlement agreement, which it did in its May 31, 2016 order.

Specifically,   the   trial court   concluded that Husband’s “child      support

obligation shall cease as of May 31, 2016.”      Order, 5/31/2016, at 1.     We

note that many of Wife’s arguments in her brief concentrate on why she

believes the trial court erred in interpreting the marriage settlement

agreement in the May 31, 2016 order. However, Wife did not appeal that

order, so we are limited to interpreting the marriage settlement agreement

as it exists after the entry of the trial court’s May 31, 2016 order. Here, it is

impossible for us to conclude that the May 31, 2016 order was merely “an

order for child support” within the meaning of ¶ 5(F), thereby triggering the

alternative payment.        Instead, the order reformed the agreement to

eliminate Husband’s child support obligations entirely.      As such, the trial

court did not abuse its discretion or err in denying Wife’s motion for specific

performance as there was nothing left in ¶ 5(F) of the marriage settlement

agreement for Husband to perform.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/20/2017




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