J-S29009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.B.,                                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

A.D.B.,

                            Appellee                   No. 916 WDA 2015


                      Appeal from the Order May 15, 2015
                  In the Court of Common Pleas of Erie County
                   Domestic Relations at No(s): NS201300434


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 02, 2016

        E.B. (Mother) appeals from the order dated May 15, 2015, that

modified an existing support order and directed A.D.B. (Father) to pay

support for the parties’ child, P.D.B. (Child), born in August of 2011. After

review, we affirm.

        The trial court set forth the following pertinent facts and procedure,

stating:

        This support matter was before the [c]ourt on [Mother’s] Petition
        for Modification of an Existing Support Order. Mother requested
        an increase in child support, alleging as follows:

              Payment was calculated incorrectly using my gross
              income and [Father’s] net.      Also, [Father] now
              receives money from the VA and has had several pay
              raises, while my income has decreased.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Following a support conference, a March 11, 2015 Interim Order
     [was] issued[,] increasing [Father’s] monthly support obligation
     to $1,024.97, plus arrears.1 The Order included the $667.95
     monthly guideline amount, $4.54 monthly health insurance and
     $373.57 monthly preschool/daycare contribution. In relevant
     part, the Order further provided: “defendant is not obligated to
     provide 100% of his vacation earnings directly to the plaintiff.”
     Mother filed a Demand for Court Hearing.
          1
           At the time of Mother’s Petition for Modification, the
          parties were governed by an April 25, 2013 Order of
          Court assessing Father with a $976.47 monthly child
          support obligation, plus arrears.

     At the de novo hearing, the parties focused exclusively on
     Mother’s request that Father be ordered to pay her 100% of the
     funds deposited monthly into his Vacation Savings Account
     through his employer, IBEW Local 56. Mother argued that
     Father was bound by a Legal Separation Agreement,2 and
     “[A]mendment”3 thereto, to pay to her every month the vacation
     funds for the Child’s future education. Following the May 13,
     2015 de novo hearing, this [c]ourt issued its May 15, 2015 Order
     making the March 11, 2015 Order a final order.
          2
            In February of 2013, the parties executed a
          document titled “Legal Separation Agreement.” See
          Exhibit A. Paragraph 11 of the Legal Separation
          Agreement is titled “Division of Assets” and includes
          provisions for the division of the parties’ marital
          home, financial accounts, life insurance and personal
          property. The at issue provision provides:

              Financial Accounts, [Mother] and [Father] own
              and agree to divide their financial accounts and
              investments as follows:
                                      …
              Account Name/Number: [Father] Vacation
              Savings Account through IBEW Local 56
              Member #5770
              Financial Institution: IBEW Local 56 Federal
              Credit Union
              Current Account Owner: [Father]


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              [Father] Receives: 0% - will withdraw no
              money from account as of 2/9/2013
              [Mother]  Receives:    100%    for [Child’s]
              Education
       3
        On October 2, 2013, the parties executed a document which
       provides as follows:

           This document will provide for the removal of the
           $250.00 per week agreed upon child support
           arrangement as long as all divorce paperwork is
           expediently signed by [Father] and not contested
           and the rest of the original separation document is
           upheld completely.        Both parties, [Father] and
           [Mother], agree to let the court decide the amount of
           child support to be paid by [Father] to [Mother]
           concerning [Child]. This document is null and void
           and the $250 child support arrangement will go back
           into effect, regardless of court order, should custody
           ever change where [Father] is awarded more
           custody by the court than the current custody
           schedule (if this change in custody is enough of a
           change to lower child support payments from
           [Father] to [Mother]). Also, concerning the money
           to be paid by [Father] to [Mother] for [Child’s]
           education (from IBEW Local #56 vacation fund as
           outlined in separation agreement); this money is to
           be paid in full by [Father] to [Mother] by the 7th of
           each month, along with a statement showing all
           transactions. The last payment to be made August
           7th following [Child’s] high school graduation. If
           [Father] is to ever terminate employment with IBEW
           Local #56 either voluntarily or involuntarily, he is to
           be responsible for the vacation rate at the time of
           termination x 40 hours per week until August 7th
           following the year of [Child’s] graduation. If [Father]
           is involuntarily laid off for a period of time, he will
           not be responsible for any money that does not get
           deposited into the vacation fund.           This is to
           commence the day of signing.

     See Exhibit B.




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Trial Court Opinion (TCO), 7/15/15, at 1-2 (unnumbered).           Thus, the May

15, 2015 order resulted in a $1,024.97 monthly support obligation, but did

not obligate Father to pay Mother his vacation earnings for Child’s college

fund.

        The trial court explained its reasoning for its determination, stating:

        [T]he [vacation] funds shall be attributed to Father as income for
        purposes of calculating support. See Pa.R.C.P. 1910.16-2(a).
        Failure to do so reduces the child support owed for [] Child’s
        benefit. Specifically, honoring the agreement would result in
        having Father pay less monthly child support in favor of putting
        away funds for this pre-school aged Child’s potential college
        education. While planning for [] Child’s future is an admiral
        goal, [] Child’s right is to have the financial support of both
        parents now, not sometime in the future.[1]

                                   ...

        Mother asserts that the [c]ourt should order Father to pay to her
        100% of the vacation funds, in addition to the ordered child
        support amount, which already takes into account the vacation
        funds by attributing them as income to Father. Mother attempts
        to justify the “double dipping” by arguing that the parties agreed
        to a contribution from Father for [] Child’s future education. It is
        well-settled, however, that the [c]ourt will “not condone ‘double
        dipping,’ i.e., using the same revenue as a source for ‘support’
        and ‘equitable distribution.’” Berry v. Berry, 898 A.2d 1100,
        1104 (Pa. Super. 2006)[,] quoting Rohrer v. Rohrer, 715 A.2d
        463, 466 (Pa. Super. 1998); see also Miller v. Miller, 783 A.2d
        832 (Pa. Super. 2001). This [c]ourt took into account the
        vacation funds and attributed them to Father as income.
        Without any legal authority from Mother to justify ordering, as
____________________________________________


1
   The trial court also notes that “the parental duty owed to the Child
generally extends only until the child reaches the age of 18 or graduates
from high school, whichever occurs later[.]” Id. at 4 (citing Style v.
Shaub, 955 A.2d 403, 408 (Pa. Super. 2008)).



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      part of the support award, for Father to pay the same funds
      twice, the [c]ourt refused to institute such an unjust result.

Id. at 3-5.

      Mother filed a timely appeal, raising one issue for our review:

      DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
      FAILED TO ENFORCE A PROVISION OF THE PARTIES’ LEGAL
      SEPARATION AGREEMENT AND “AMENDMENT” THERETO?

Mother’s brief at 7.

      When reviewing a child support order, we are bound by the following

well-settled standard:

      “When evaluating a support order, this Court may only reverse
      the trial court’s determination where the order cannot be
      sustained on any valid ground.” Calabrese v. Calabrese, 452
      Pa. Super. 497, 682 A.2d 393, 395 (Pa. Super. 1996). We will
      not interfere with the broad discretion afforded the trial court
      absent an abuse of the discretion or insufficient evidence to
      sustain the support order. Id. An abuse of discretion is not
      merely an error of judgment; if, in reaching a conclusion, the
      court overrides or misapplies the law, or the judgment exercised
      is shown by the record to be either manifestly unreasonable or
      the product of partiality, prejudice, bias or ill will, discretion has
      been abused. Depp v. Holland, 431 Pa. Super. 209, 636 A.2d
      204, 205-06 (Pa. Super. 1994); [s]ee also Funk v. Funk, 376
      Pa. Super. 76, 545 A.2d 326, 329 (Pa. Super. 1988).                 In
      addition, we note that the duty to support one's child is absolute,
      and the purpose of child support is to promote the child's best
      interests. Depp, 636 A.2d at 206.

Belcher v. Belcher, 887 A.2d 253, 256 (Pa. Super. 2005) (quoting Samii

v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004)).          Moreover, “[t]he party

seeking modification has the burden of establishing that current conditions

differ from those in existence when the child support arrangements were




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reached.”     Id. (citing McClain v. McClain, 872 A.2d 856 (Pa. Super.

2005)).

       The essence of Mother’s argument is that the court should have

required Father to continue to contribute 100% of his vacation pay toward

Child’s education fund as required by the parties’ Agreement and the

Amendment. Specifically, Mother contends that the court erred by applying

Father’s “vacation pay towards its assessment of his monthly net [] income

to calculate child support.” Mother’s brief at 17. Moreover, she asserts that

the “court’s rationale that honoring the [A]greement between the parties

would result in less monthly child support is also misplaced.” Id. Rather,

Mother explains that if the Agreement/Amendment were enforced, Child

would receive more of a benefit because the support payment plus the

payment for the college fund would involve all of Father’s income.2

       Mother relies on McMichael v. McMichael, 700 A.2d 1337 (Pa.

Super. 1997), and Nicholson v. Combs, 650 A.2d 55 (Pa. Super. 1994)

(Nicholson I), for the proposition that the parties’ “[A]greement constitutes

the level below which support may not be modified.” McMichael, 700 A.2d

at 1339.      She also quotes the following from this Court’s decision in

McMichael, wherein we stated:


____________________________________________


2
 However, at no point does Mother indicate what is Father’s vacation pay
amount.



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      [A] support provision in [an] agreement constitutes the level
      below which support may not be modified. Courts have general
      authority to modify their own support orders based upon
      changed circumstances.       However, this does not permit
      modification below the level of support set forth in the
      agreement of the parties where the court has incorporated that
      agreement as part of its support order. The support obligation
      set forth in the agreement is an independent financial obligation
      between the parties. Support may be modified upward based on
      the unavoidable obligation which a parent owes to meet the
      reasonable needs of a dependent child, but this rationale does
      not extend to downward modification of the level of support set
      forth in parties' agreement once the court has adopted their
      agreement.

Id. at 1339. Thus, Mother contends that Father “should have been ordered

to pay either the child support calculation which included his vacation pay

along with payment of one hundred percent (100%) of his vacation pay

towards the minor child’s [education] fund or, in the alternative, be held to

the original legal separation agreement which provides for child support in

the amount of $250.00 a week along with payment of one hundred percent

(100%) of [Father’s] vacation pay made payable to [Mother] and held for

the minor child’s education fund.” Mother’s brief at 19.

      Lastly, Mother asserts that 23 Pa.C.S. § 3105(a) allows either party to

enforce an agreement in the domestic relations court.       However, Mother

does not include the language found at Section 3105(b), which references

modification of an agreement. Section 3105 provides, in pertinent part:

      § 3105. Effect of agreement between parties

      (a) Enforcement.—A party to an agreement regarding matters
      within the jurisdiction of the court under this part, whether or
      not the agreement has be merged or incorporated into the
      decree, may utilize a remedy or sanction set forth in this part to

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        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.

        (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.

23 Pa.C.S. § 3105(a), (b).

        Father’s position regarding the issue before this Court rests squarely

on the question as to whether the Agreement/Amendment may be modified.

He   acknowledges that       the   Agreement provided for    no   modification.

Agreement, Introductory Paragraph (stating “[t]he separation agreement is

to survive the judgment of divorce as a separate legally binding contract and

is not subject to any court modification”). However, Father then points out

that Mother’s initial complaint for modification of support, filed on March 28,

2013, resulted in the parties’ entering into the Amendment, and required

Father to pay $976.47 per month child support, which was an amount lower

than the $250 per week agreed upon amount. See Amendment. According

to the earlier order, Father was still obligated to pay 100% of his vacation

pay to Mother for Child’s education fund.     Following the filing of Mother’s

second petition to modify, on January 19, 2015, the court ordered Father to

pay $1,024.97 per month in child support, but determined that he was not

obligated to pay 100% of his vacation pay to Mother for Child’s education

fund.




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     Father also counters Mother’s reliance on the McMichael decision,

which she claims denies a court the right to lower child support to an

amount lower than stated in the Agreement. Father noted the McMichael

court’s reliance on the Superior Court’s Nicholson I decision, which held

that “a court could not modify a support agreement in a way that would

reduce   the   amount   of   child   support   below   that   identified   in   the

[A]greement.” Father’s brief at 5-6 (citing Nicholson I, 650 A.2d at 59).

However, Father references the Supreme Court’s reversal of that aspect of

the Nicholson I decision.    See Nicholson v. Combs, 703 A.2d 407 (Pa.

1997) (Nicholson II).    The Nicholson II decision provides that “parties

who executed agreements on or after February 12, 1988, knew that both

downward and upward modification would be a possibility, and therefore

they could negotiate their agreements relying on this proposition.”         Id. at

413. This discussion by Father provides a correct statement of the law as it

presently stands.   See Patterson v. Robbins, 703 A.2d 1049, 1051 (Pa.

Super. 1997) (stating that “the trial court has the power to modify the terms

of the agreement with regard to child support upward or downward based on

‘changed circumstances’”).

     Father further indicates that by filing the modification petition, Mother

acknowledged a change in circumstances, which then authorized the court to

modify the child support amount. See 23 Pa.C.S. § 3105(b). Even though

Mother was requesting a change in the monthly child support payment, she

was not requesting a change to the education fund payment.                 Father

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identifies both payments as relating to child support, and contends that the

court properly evaluated all payments he made in conjunction with his

support of Child.

      In reviewing the trial court’s decision, we agree with its reliance on the

following language from Kraisinger v. Kraisinger, 928 A.2d 333 (Pa.

Super. 2007):

      Parties to a divorce action may bargain between themselves and
      structure their agreement as best serves their interests[] ...[.]
      They have no power, however, to bargain away the rights of
      their children[] ...[.] Their right to bargain for themselves, is
      their own business. They cannot in that process set a standard
      that will leave their children short.      Their bargain may be
      eminently fair, give all that the children might require and be
      enforceable because it is fair. When it gives less than required
      or less than can be given to provide for the best interest of the
      children, it falls under the jurisdiction of the court’s wide and
      necessary powers to provide for that best interest.... [The
      parties’ bargain] is at best advisory to the court and swings on
      the tides of the necessity that the children be provided.

Id. at 340-41 (quoting Knorr v. Knorr, 588 A.2d 503, 505 (Pa. Super.

2007)).

      However, we are troubled by the court’s use of the “double dipping”

terminology, because that term references “the same revenue as a source

for ‘support’ and ‘equitable distribution.’”   See Berry v. Berry, 898 A.2d

1100, 1104 (Pa. Super. 2006); see also TCO at 4. Here, the issue as to the

vacation funds does not concern equitable distribution; rather, it is a

question relating solely to child support, either to be counted toward

monthly support or to be invested for Child’s future education.             The



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underlying question rests on whether the vacation funds are or are not

income as defined in Section 4302 of the Domestic Relations Code, which

provides:

     “Income.” Includes compensation for services, including, but not
     limited to, wages, salaries, bonuses, fees, compensation in kind,
     commissions and similar items; income from life insurance and
     endowment contracts; all forms of retirement; pensions; income
     from discharge of indebtedness; distributive share of partnership
     gross income; income in respect of a decedent; income from an
     interest in an estate or trust; military retirement benefits;
     railroad employment retirement benefits; social security
     benefits; temporary and permanent disability benefits; workers’
     compensation; unemployment compensation; other entitlements
     to money or lump sum awards, without regard to source,
     including lottery winnings; income tax refunds; insurance
     compensation or settlements; awards or verdicts; and any form
     of payment due to and collectible by an individual regardless of
     source.

23 Pa.C.S. § 4302.    See also Pa.R.C.P. 1910.16-2.      Moreover, “[w]hen

determining income available for child support, the court must consider all

forms of income.”     Berry, 898 A.2d at 1104 (quoting MacKinley v.

Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002)).

     Clearly, the amount Father’s employer pays into Father’s vacation

account is income that Father earns as part of his compensation. Therefore,

we conclude that the court correctly determined that that sum is income and

should be included in the calculation of Father’s support obligation.    The

question then arises: Does the parties’ Agreement/Amendment override the

court’s conclusion that the vacation pay must be included in the calculation

of the monthly support payment or can it be designated as a contribution for



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Child’s future schooling?        We conclude that pursuant to the Kraisinger

decision, the court had the power to require that Father’s vacation pay be

included in the calculation of his income for support purposes, because

failing to calculate it in that manner would reduce the monthly support

payment.        See Kraisinger, 928 A.2d at 340-41 (stating that when the

agreement gives “less than can be given to provide for the best interest of

the children, it falls under the jurisdiction of the court’s wide and necessary

powers     to    provide   for   that   best   interest…”).   Simply   stated,   the

Agreement/Amendment is advisory, not controlling.

       Accordingly, after review, we affirm the trial court’s determination,

even though on a slightly different basis.3 The court’s conclusions “were not

reached as the result of partiality, prejudice, bias, or ill-will nor was the law

overridden or the judgment exercised manifestly unreasonable.” See id. at

343.

       Order affirmed.




____________________________________________


3
 “[W]e may affirm a trial court’s ruling on any basis supported by the record
on appeal.” D.M. v. V.B., 87 A.3d 323, 330 n.1 (Pa. Super. 2014) (quoting
Lynn v. Nationwide Ins. Co., 70 A.3d 814, 823 (Pa. Super. 2013)).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2016




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