J-S24028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TARA COMAN,                                    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

CHARLES COMAN, JR.

                        Appellee                   No. 2869 EDA 2014


           Appeal from the Order entered September 12, 2014,
            in the Court of Common Pleas of Monroe County,
        Domestic Relations, at No(s): 1211 DR 2013, 9842 CV 2013


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED APRIL 08, 2015

     Appellant, Tara Coman, (“Mother”), appeals from the trial court’s order

denying her petition to enforce a post-nuptial agreement as it relates to the

child support obligation of Appellee, Charles Coman, (“Father”). We affirm.

     Mother and Father were divorced on May 1, 2014, and are the parents

of two minor children. On May 19, 2014, Mother filed a petition to enforce

the post-nuptial agreement executed by the parties on November 8, 2013.

The agreement specified that it was “incorporated into any divorce decree …

but it shall not be merged with such decree.”      Post-Nuptial Agreement,

11/8/13, at 2.   The objective of Mother’s petition was to enforce/increase

the amount of Father’s monthly child support obligation from $697 (which

Father paid pursuant to a December 31, 2013 domestic relations order

issued after Mother filed for child support on November 5, 2013) to $1,100
J-S24028-15



(which Father agreed to pay in the November 8, 2013 post-nuptial

agreement).        Mother had also filed to modify child support on March 24,

2014.         A conference was held on April 29, 2014, after which Mother’s

modification action was dismissed and the prior order for $697 monthly child

support remained in effect.

        The trial court convened a hearing on Mother’s May 19, 2014 petition

to enforce the post-nuptial agreement on August 21, 2014. On September

12, 2014, it entered its order denying Mother’s petition for enforcement of

post-nuptial agreement.       Mother filed a timely appeal on September 30,

2014, and the trial court and Mother have complied with Pa.R.A.P. 1925.

        Mother presents two issues for our review:


        I.       WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
                 DISCRETION IN RULING [MOTHER] WAIVED HER RIGHT
                 TO SEEK ENFORCEMENT OF A POST-NUPTIAL AGREEMENT,
                 WHERE THE EVIDENCE DEMONSTRATED AN ENFORCEABLE
                 POST-NUPTIAL AGREEMENT EXISTED AND THAT SAID
                 AGREEMENT PRECLUDED WAIVER OR MODIFICATION,
                 EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY BOTH
                 PARTIES?

        II.      WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
                 DISCRETION BY DENYING [MOTHER’S] PETITION TO
                 ENFORCE   A  PROPERLY   EXECUTED   POST-NUPTIAL
                 AGREEMENT, WHICH DENIAL HAD THE EFFECT OF
                 ORDERING A DOWNWARD MODIFICATION OF THE CHILD
                 SUPPORT PROVISION OF THE AGREEMENT WHERE THERE
                 WAS NO PETITION FOR MODIFICATION BEFORE THE
                 COURT AND THE EVIDENCE DEMONSTRATED NO CHANGE
                 IN CIRCUMSTANCES HAD OCCURRED?

Mother’s Brief at 4.



                                       -2-
J-S24028-15


     [Our] scope of review in a support matter focuses upon whether
     the lower court abused its discretion. Ashbaugh v. Ashbaugh,
     426 Pa.Super. 589, 627 A.2d 1210 (1993).                An abuse of
     discretion is “[n]ot merely an error of judgment, but if in
     reaching a conclusion the law is overridden or misapplied or the
     judgment exercised is manifestly unreasonable, or the result of
     partiality, prejudice, bias, or ill-will, as shown by the evidence or
     the record, discretion is abused.” Id. (citation omitted).

Boullianne v. Russo, 819 A.2d 577 (Pa. Super. 2003).

     Here, we discern no abuse of discretion by the trial court. In framing

her two issues, Mother disregards the overarching nature of the law and

policy applicable to agreements between parents vis-à-vis child support. 23

Pa.C.S.A. § 3105 provides:


     Effect of agreement between parties

     (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.

Section 3105 permits the modification of a child support agreement.

Boullianne v. Russo, 819 A.2d at 580. “In [a] support action,... the payee

may not claim that the [agreement] prevents the family court from

modifying the order downward if such reduction is necessary to prevent the

payor from having to comply with an order that he cannot pay due to

changed circumstances.” Id.

     We recently explained:

     [M]arital settlement agreements that are merged into a divorce
     decree are treated differently than agreements that are
     incorporated into the divorce decree. See Jones v. Jones, 438

                                     -3-
J-S24028-15


     Pa.Super. 26, 651 A.2d 157, 158 (1994) (holding that an
     agreement that merges into the divorce decree is enforceable as
     a court order, but an agreement incorporated into the decree
     “survives as an enforceable contract [and] is governed by the
     law of contracts”). However, this distinction does not apply
     to the provisions of such agreements that concern
     matters of child support or custody. The Divorce Code
     specifically provides that regardless of whether an
     agreement between parties is merged or incorporated
     into the divorce decree, “[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.A. § 3105(b); see also
     McClain, 872 A.2d at 862–63. The Pennsylvania Supreme Court
     explained the policy behind this statute when it explained that
     “[p]arties 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[.]” Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503, 505
     (1991). Thus, regardless of the fact that the parties' PSA was
     incorporated into their divorce decree, the trial court had
     jurisdiction to modify the provision addressing Father's child
     support obligation.

Morgan v. Morgan, 99 A.3d 554, 557 (Pa. Super. 2014) (emphasis added).

     Moreover, with regard to modification – which Mother pursued in her

unsuccessful March 24, 2014 action – the Rules of Civil Procedure provide:

     Pursuant to a petition for modification, the trier of fact
     may modify or terminate the existing support order in any
     appropriate manner based upon the evidence presented
     without regard to which party filed the petition for
     modification. If the trier of fact finds that there has been a
     material and substantial change in circumstances, the order may
     be increased or decreased depending upon the respective
     incomes of the parties, consistent with the support guidelines
     and existing law, and each party's custodial time with the child
     at the time the modification petition is heard.

Pa.R.C.P. 1910.19(c) (emphasis added).



                                    -4-
J-S24028-15



     Here, the trial court expanded on our Commonwealth’s policy of

fundamental fairness – to parents as well as children – and commented:

     Initially, we note that a parent cannot bargain away the child’s
     right to support. Although the majority of the case law in this
     respect discusses the situation where a party agrees to less child
     support than they may be entitled, we believe the reverse is also
     true. Instantly, [Mother] chose to first proceed with a domestic
     relations support conference instead of seeking redress with the
     Court. “The support guidelines are to be considered both in
     entering the original support order, and in entering a modified
     order.” Shutter v. Reilly, 539 A.2d 424, 426 (Pa. Super. 1988).

Trial Court Opinion, 11/12/14, at 2 (unnumbered and one citation omitted).

     Mother and Father were the only witnesses to testify at the August 21,

2014 hearing on Mother’s petition to enforce post-nuptial agreement.

Mother testified to filing for child support on November 5, 2013, and stated

with regard to the corresponding December 17, 2013 support conference, “I

thought they would go by the post-nup agreement when I went in there.”

N.T., 8/21/14, at 14-15.   She repeated, “I tried to go with the post-nup

agreement, and they didn’t go with it.” Id. at 16. Mother testified, “they

told me they’d go by [Father’s] income.”     Id.   As a result, Father was

ordered on December 31, 2013 to pay child support of $697 per month.

     Mother explained that she then filed to modify child support on March

24, 2014 because she “put the children in day care.”     Id. at 24.   Mother

testified, however, that she “didn’t actually have day care” because she was

“off from work.” Id. at 25. At the conference held on April 29, 2014, Father




                                   -5-
J-S24028-15



provided his 2013 tax return, and Mother’s petition was dismissed, with

Father’s $697 monthly child support obligation remaining in effect. Id.

      Similarly, Father testified that he provided his 2013 tax return at the

April, 2014 support conference, and the amount of his support obligation

was not changed from the $697 monthly support ordered on December 31,

2013. Id. at 31. He explained that the conference officer reviewed his tax

return, and “it was pretty much accurate based on the information I brought

the first time, so nothing changed.”     Id.   Father testified that the $697

monthly support amount was based originally on his “QuickBooks reporting”

at the December 2013 conference.       Id. at 32.   Father explained that he

“actually just got caught up” on his $697 monthly child support obligation,

but “would not be able to” pay $1,100 monthly child support. Id. at 33-34.

      Given the foregoing legal authority and facts of record, we find no

abuse of discretion by the trial court in denying Mother’s petition to enforce

post-nuptial agreement as it pertains to Father’s child support obligation.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




                                     -6-
