J-S37001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MICHAEL MCSHANE                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LORI MCSHANE                               :   No. 3708 EDA 2018

                Appeal from the Order Entered January 15, 2019
                 In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): A06-16-60672-D

BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 26, 2019

       Michael McShane (“Husband”) appeals from the January 15, 2019 order1

that required him to pay Lori McShane (“Wife”) $2,500 per month pursuant to

the parties’ marital settlement agreement (“MSA”). We affirm.

       Husband and Wife married in 2007 and divorced in 2016, with Wife

remaining in the marital residence with their child, A.M. (born in 2007). The

parties’ economic issues were resolved by the MSA, which was incorporated

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1 The trial court orally entered its order at the conclusion of a hearing on
November 27, 2018, and Husband filed a notice of appeal on December 20,
2018. However, the order was not appealable at that time as it had not been
entered on the docket. See Pa.R.A.P. 301(a) (“[N]o order of a court shall be
appealable until it has been entered upon the appropriate docket in the lower
court.”). This Court, therefore, instructed the trial court to enter the order in
compliance with Rule 301(a), which it did on January 15, 2019. We deem
Husband’s notice of appeal to have been properly filed from the January 15,
2019 order pursuant to Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”).
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into the divorce decree. Relevant to this appeal, the MSA provided as follows

regarding Husband’s monthly payments to Wife:

     II.   SUPPORT AND ALIMONY

           ....

           B.     CHILD SUPPORT

           Beginning on the first of the month after the execution of
     this Agreement, [Husband] shall pay to [Wife] the total monthly
     sum of two-thousand five hundred dollars ($2,500.00) for the
     support of [A.M.]

           C.     ALIMONY, SUPPORT AND MAINTENANCE

            In consideration of the mutual covenant and agreement of
     the parties voluntarily to separate and to live separate and apart,
     and in consideration of the other provisions of this Agreement for
     the respective benefit of each party, each party hereby waives and
     relinquishes any claim which he or she may have against the other
     party for alimony, or for spousal support, or for support and
     maintenance, (whether temporary, pendente lite, rehabilitative,
     indefinite, permanent, lump sum, or any other kind, nature or
     description), now or in the future, in this or in any other
     jurisdiction. The parties understand that the waiver of alimony
     herein set forth is final and irrevocable, and that no court shall
     have the power to modify this paragraph by the restoration of
     alimony to either party, or otherwise.

     III. DISTRIBUTION AND RESPONSIBILITIES REGARDING
     PROPERTY

           A.     WAIVER OF EQUITABLE DISTRIBUTION

           Except as otherwise expressly provided in this Agreement,
     each party releases and waives any claim he or she may have
     against any income, asset or property, real or personal, now
     owned or hereafter acquired by the other. This Agreement is
     intended as an agreement settling and disposing of all property
     rights contemplated under 23 Pa.C.S.A. §§ 3501 et seq.




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              B.     MARITAL RESIDENCE

            1.     The parties acknowledge that they owns [sic] real
       property . . . (hereinafter referred to as the “Marital Residence”)
       that has a mortgage of approximately $254,627.17 . . . in
       Husband’s name.

              2.    The parties agree that Wife will continue to reside in
       the Marital Residence for up to three (3) months following the first
       of the following events: the parties’ daughter, [A.M.], reaching the
       age of eighteen (18), [A.M.] beginning college and/or [A.M.]
       moving out of the Marital Residence. . . .

              ....

             4.     Husband shall provide to Wife ongoing monthly
       support pursuant to Section II, supra, and as such Wife shall be
       solely responsible for the payment of all expenses associated with
       the Marital Residence, including, without limitation, the mortgage,
       taxes, insurance, utility charges, repairs, claims, damages and all
       other expenses which may occur as a result of her occupancy of
       the residence. In the event that Wife fails to make such
       payments, then Husband shall be entitled to, at his
       election, cease payments to Wife pursuant to this
       Agreement. See Section II, supra.

MSA, 7/29/16, at 10-13 (emphasis added).

       According to the trial court and the parties, on July 20, 2018, Husband

had filed a petition for child support, purportedly on behalf of Wife, to obtain

a ruling from the court that the $2,500 monthly payment required by the MSA

constitutes child support and is thus modifiable.2 On August 20, 2018, Wife

responded with a petition for contempt and enforcement of the MSA,



____________________________________________


2 Husband’s petition does not appear on the docket of the instant case, nor is
it in the certified record. Accordingly, Husband’s petition is not before us in
this appeal.

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countering that the payment for maintenance of the marital residence was

separate and apart from Husband’s child support obligation, that it should not

be modified by a child support order, and that circumstances do not warrant

modification of the MSA.

      The court held a hearing on the matter on November 27, 2018, at which

Wife testified, over Husband’s objections based upon the parol evidence rule,

that she waived any claims for alimony or a share of the marital portion of

Husband’s pension, retirement, or savings in exchange for his agreement to

pay her $2,500 each month. N.T., 11/27/18, at 22-23. Wife further indicated

that she and Husband structured the agreement so that A.M. would be able

to stay in the marital residence until she finished high school. Id. at 5-6, 12-

13.   Husband’s testimony largely confirmed Wife’s representations, but he

claimed that “he was ‘being taken advantage of’ because he would provide for

the child beyond the $2,500 per month in the form of clothes and sneakers.”

Trial Court Opinion, 3/18/19, at 6 (citing N.T., 11/27/18, at 29-30). Husband

additionally expressed his belief that his monthly payment should be reduced

because he has another child with his current spouse. See id.

      At the conclusion of the hearing, the trial court concluded that the intent

of the parties, gleaned from the language of the agreement itself and from

the testimony of the parties, was “to avoid a child support obligation with the

courts, and instead, have [Husband] pay the sum of $2500 to [Wife], which

included child support.” N.T., 11/27/18, at 44. Ruling that the obligation was


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“not subject to modification under these circumstances,” the court ordered

Husband to continue paying Wife pursuant to the agreement. Id.

      Husband filed a timely notice of appeal, and both Husband and the trial

court complied with Pa.R.A.P. 1925. Husband presents the following questions

for our determination:

             1.    Whether the trial court abused its discretion when it
      effectively held that the child support figure contained in the
      parties[‘] [MSA] could never [be] modified thereby violating the
      child’s right to a decrease or increase in child support when it
      upheld the [MSA] figure and failed to consider the evidence of the
      parties[‘] employment, income, and expenses establishing a
      change in circumstances and therefore a lower guideline support
      obligation.

            2.     Whether the trial court abused its discretion when it
      allowed and used testimony from [Wife] as to the intent of the
      parties in reaching the amount of the child support obligation and
      other financial terms contained in the [MSA] when the [MSA’s]
      provision on child support was clear and unambiguous.

Husband’s brief at 5 (unnecessary capitalization omitted).

      We begin with our standard of review.       “On appeal from an order

interpreting a [MSA], we must determine whether the trial court committed

an error of law or an abuse of discretion. We do not usurp the trial court’s

fact-finding function.” Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa.Super. 2000)

(en banc) (cleaned up). “A finding of abuse of discretion requires proof of

more than a mere error in judgment, but rather evidence that the law was

misapplied or overridden, or that the judgment was manifestly unreasonable

or based on bias, ill will, prejudice or partiality.” Bienert v. Bienert, 168

A.3d 248, 253 (Pa.Super. 2017) (internal quotation marks omitted).

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       Next, we examine the applicable substantive law.       Pursuant to the

Divorce Code, generally speaking, the parties to a MSA may seek to have the

court enforce the agreement the same as if it had been an order of court. 23

Pa.C.S. § 3105 (a).        Some terms of a postnuptial agreement are always

subject to modification, while others are modifiable only if the agreement so

provides. Specifically, § 3105 provides as follows:

       (b) Certain provisions subject to modification.--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.

       (c) Certain provisions not subject to modification.--In the
       absence of a specific provision to the contrary appearing in the
       agreement, a provision regarding the disposition of existing
       property rights and interests between the parties, alimony,
       alimony pendente lite, counsel fees or expenses shall not be
       subject to modification by the court.

23 Pa.C.S. § 3105.

       The MSA at issue does not contain a provision for court modification. 3

Hence, whether the $2,500-per-month-payment provision is subject to

modification by the court depends on whether it is child support. To answer

that question, we must interpret the terms of the MSA, mindful of the following

principles.

       Interpretation of a postnuptial agreement is a question of law governed

by contract principles.      See, e.g., Melton v. Melton, 831 A.2d 646, 653


____________________________________________


3The MSA does provide that it is subject to modification by a writing signed
by both parties. See MSA, 7/29/16, at 8.

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(Pa.Super. 2003).     “When interpreting the language of a contract, the

intention of the parties is a paramount consideration.      In determining the

intent of the parties to a written agreement, the court looks to what they have

clearly expressed, for the law does not assume that the language was chosen

carelessly.” Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa.Super. 2005)

(internal quotation   marks omitted).        “When interpreting agreements

containing clear and unambiguous terms, we need only examine the writing

itself to give effect to the parties’ intent.”   Id. (internal quotation marks

omitted).

      When, however, an ambiguity exists, parol evidence is admissible
      to explain or clarify or resolve the ambiguity. . . . A contract is
      ambiguous if it is reasonably susceptible of different constructions
      and capable of being understood in more than one sense. While
      unambiguous contracts are interpreted by the court as a matter
      of law, ambiguous writings are interpreted by the finder of fact.

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citations omitted).

      In construing the agreement,

            [t]he court will adopt an interpretation that is most
            reasonable and probable bearing in mind the objects
            which the parties intended to accomplish through the
            agreement.

      Before a court will interpret a provision in a contract in such a way
      as to lead to an absurdity or make the contract ineffective to
      accomplish its purpose, it will endeavor to find an interpretation
      which will effectuate the reasonable result intended.

Stamerro, supra at 1258–59 (cleaned up). “Further, a contract must be

interpreted to give effect to all of its provisions.   Thus, our Court will not

interpret one provision of a contract in a manner which results in another

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portion being annulled.” Driscoll v. Arena, 213 A.3d 253, 259 (Pa.Super.

2019) (en banc) (cleaned up).

      In his issues on appeal, Husband argues that the trial court erred by

considering parol evidence to conclude that the monthly $2,500 payment

merely   included   child   support,   rather   than   holding   that   the   MSA

unambiguously indicated that the $2,500 payment is wholly modifiable child

support obligation, and also in declining to modify the amount based upon

Husband’s changed circumstances. See Husband’s brief at 11-16. Husband

contends that the trial court violated A.M.’s rights when it “effectively held”

that his child support for A.M. “could never [be] modified.” Id. at 5, 11. See

also Kraisinger v. Kraisinger, 928 A.2d 333, 345 (Pa.Super. 2007) (“A

child’s right to adequate support cannot be bargained away by either parent

and any release or compromise is invalid to the extent it prejudices a child’s

welfare.”).

      The trial court offered the following explanation for its determinations.

            We have to give the agreement between the parties its full
      effect and meaning based upon the language contained in that
      agreement which is integrated as the writing between Husband
      and Wife, and not upon anything beyond the four corners of that
      writing.

            There are two separate provisions within the [MSA]. One is
      on Page 11 where [Husband] agrees to pay the amount of $2500
      for support of a child. On Page 13 of the same agreement, the
      same amount is to be paid to, quote, provide for Wife’s ongoing
      monthly support. So we have the same amount, the same payer,
      the same payee. One is couched in terms of support of the child;
      the other to provide for wife.


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           It’s clear from the reading of this agreement, giving it its
     logical meaning, that the parties negotiated at arm’s length for
     Wife to remain in the house until [A.M.] reached her 18th birthday,
     or until majority. [Husband] understood that. He agreed to it. In
     order for that to be accomplished, for Wife to remain in the house,
     [Husband] would pay $2500 per month with the caveat that Wife
     would be responsible for all of the expenses of the marital home,
     mortgage, taxes, utilities, and if Wife defaulted on an obligation,
     which she has not, Husband had a remedy, which was to take
     possession of the house and have it sold, among other remedies.

           ....

           The agreement could have been drafted in a fashion so there
     was no dispute as to how that money was allocated, but we do
     note that Wife gave up any opportunity to obtain additional
     property from Husband; her right to seek alimony. So when we
     look at Paragraph B on Page 11 it says that [Husband] shall, that
     means must, pay to mother the total monthly sum of $2500 for
     support of the child. That seems to be clear in intent.

           Then it also states, Page 12, under Paragraph B, Husband’s
     acknowledgement that Wife will continue to remain in the marital
     residence until [A.M.] reaches majority.      That is clear and
     unmistakable.

           And then finally, on Page 13 it says, Husband shall provide
     to Wife, not to the child or not on behalf of the child, ongoing
     monthly support, and as such, Wife shall be solely responsible for
     the expenses for the home.

           Now, those two provisions can stand alone, and yet they can
     be read together to reflect the intent of the parties.

            We believe and we find that the credible evidence, after
     hearing from both [Wife] and [Husband], and in reviewing the
     agreement, is that the parties, although not in the most artful
     way, intended to avoid a child support obligation with the courts,
     and instead, have [Husband] pay the sum of $2500 per month to
     [Wife], which included child support. So rather than allocate this
     . . . we will enter the following order: The agreement between the
     parties is a valid agreement, not subject to modification under
     these circumstances, and [Husband] shall continue to pay $2500
     per month to [Wife] which shall include the addition of the

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      payment of [Wife] for the upkeep of the home, a component of
      child support.

N.T., 11/27/18, at 41-44.

      We wholly agree with the trial court’s interpretation of the language of

the MSA. Although Husband’s financial obligation may be identified as child

support in one provision of the MSA, construing the contract as a whole, the

only reasonable interpretation is that Husband’s monthly payment to Wife

represents both child support for A.M. and compensation for Wife’s waiver of

other economic claims she could have pursued in the litigation of the divorce

action. Indeed, the provision that we highlighted on page 3, supra ― that

Husband may unilaterally elect to stop paying Wife anything if Wife fails to

pay the mortgage and maintain the house ― is completely incompatible with

Husband’s characterization of the payment as child support and child support

alone. This Court cannot adopt such an absurd interpretation. See, e.g.,

Stamerro, supra at 1258–59.        Accordingly, the plain and unambiguous

language of the contract supports the trial court’s conclusion that the $2,500

monthly payment is an unallocated disbursement of both child support and

Wife’s settlement of her personal economic claims.

      As we hold that the intent of the parties is clear from the MSA itself,

Husband is correct that parol evidence as to the meaning of the instrument

was not properly admitted.    See, e.g., Driscoll, supra at 259 (“When a

contract is clear and unequivocal, its meaning must be determined by its

contents alone.”) (internal quotation marks omitted). However, we have no

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hesitation in concluding that the evidentiary error was harmless.            The

testimony of the parties heard and credited by the trial court completely

aligned with intent established by the plain meaning of the language of the

MSA itself. Consequently, the improperly-admitted evidence did not affect the

outcome and warrants no relief from this Court.         See, e.g., Conroy v.

Rosenwald, 940 A.2d 409, 417 (Pa.Super. 2007) (noting that an evidentiary

ruling must be both erroneous and harmful to the complaining party to

constitute reversible error).

      Finally, while it is uncontroverted that a portion of Husband’s monthly

payment is child support, and therefore is subject to modification under 23

Pa.C.S. § 3105(b), we discern no abuse of discretion in the trial court’s

declining to modify the total amount of support in the instant case. Husband

has failed to demonstrate that the trial court’s conclusion that Husband’s

responsibility for a second child and Wife’s obtaining employment did not

warrant modification of the total amount of support in this case was manifestly

unreasonable, based upon bias or ill-will, or the result of misapplication of the

law. See Bienert, supra at 253. Accordingly, we do not disturb the trial

court’s ruling.

      Order affirmed.

      Judge Kunselman joins the memorandum.

      President Judge Emeritus Ford Elliott concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/19




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