J-S40002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JENNIFER BROWN,                                IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    WILLIAM BROWN,

                             Appellant                No. 571 WDA 2018


                   Appeal from the Order Dated April 2, 2018
               In the Court of Common Pleas of Allegheny County
                Family Court at No(s): F.D. No. 17-004670-005

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 09, 2019

        William Brown (Husband) appeals from the April 2, 2018 trial court order

that denied the exceptions he filed to the Hearing Officer’s Report and

Recommendations, dated December 5, 2017, relative to an order of child

support to be paid by Husband to Jennifer Brown (Wife) for the support of the

parties’ two children. For the reasons set forth below, we affirm.

        The trial court provided the following factual and procedural history of

this matter, stating:

        The parties were married on March 1, 1998, and separated on
        February 1, 2015 after 16 years and 11 months of marriage. A
        divorce action was filed by Wife in the Court of Common Pleas of
        Mercer County at No. 2015-882. Husband filed a Petition Raising
        Economic Claims, including spousal support, [Alimony Pendente
        Lite (APL)] and alimony. Wife filed a complaint for child support.
        On August 26, 2015, the Mercer County Court entered an [o]rder
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     providing for monthly child support in the amount of $903.49. On
     October 16, 2017, [t]he [c]ourt entered an [o]rder for Spousal
     Support/APL in favor of Husband. In the October 16 order, the
     [c]ourt found that as “the obligation for spousal support owed by
     Jennifer Brown to William Brown exceeds that of child support
     owed by William Brown to Jennifer Brown, the child support order
     ... was terminated effective August 26, 2015.”

           On or about November 23, 2016, the parties entered into a
     comprehensive Marriage and Property Settlement Agreement
     (hereinafter, the “MSA”), which encompassed all issues for
     property settlement, spousal support, APL, alimony and child
     support utilizing the support calculations as found by the [c]ourt.
     The MSA contains the following relevant provisions:

                 7. Spousal Support. Alimony Pendente Lite,
           Alimony and Counsel Fees—It is respectfully agreed that
           neither Husband nor Wife will petition the [c]ourt for an
           Order against the other for Counsel Fees, Alimony,
           Alimony Pendente Lite and/or Spousal Support, it being
           expressly understood and agreed that the financial and
           property arrangements made hereunder are in lieu of any
           such claims, now or at any time in the future, and as such
           are NON-MODIFIABLE in all respects, with all other
           claims to counsel fees, alimony, spousal support, and
           alimony pendente lite being hereby WAIVED by the
           parties. Husband shall dismiss the Spousal Support/APL
           action brought against Wife within seven (7) days of the
           execution of this Agreement and forgive any back
           spousal support/APL to which he may have been entitled.

                  8. Child Support—Wife agrees not to file for child
           support for a period of five (5) years from the date of this
           Agreement given Husband’s waiver to alimony provided
           for in Paragraph 7 above and the disparity in the earnings
           capacity of the parties. The parties agree that after said
           five (5) year period from the date of execution of this
           Agreement, they shall handle the payment of child
           support between themselves privately outside of the
           Family Division.

     Wife subsequently filed for child support in Allegheny County, and
     at the duly scheduled hearing on her petition, the Hearing Officer
     declined to give her imprimatur to the parties’ child support

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      agreement, finding it to be violative of Pennsylvania public policy
      on ensuring the enforceability of child support obligations owed to
      its citizens.     [Husband] filed timely Exceptions to that
      determination, arguing that the Hearing Officer had committed
      reversible error by failing to enforce the parties’ MSA and by failing
      to award counsel fees.

Trial Court Opinion (TCO), 3/28/19, at 1-2.

      Upon review, the trial court adopted the Hearing Officer’s Report and

Recommendation, entering it as a final order of court. In its opinion, the trial

court explained its reasoning, as follows:

             This [c]ourt was not persuaded by any of the evidence or
      testimony in the record or at the Exceptions Argument that the
      Hearing Officer committed any material error or omission or any
      abuse of discretion. Counsel for [Husband] correctly notes that
      there exist some exceptions to the general rule, from Kesler v.
      Wininger, 744 A.2d 794, 796 (Pa. Super. 2000), that “a parent
      cannot bind a child or bargain away that child’s right to support,”
      but [c]ounsel fails to demonstrate that the case at hand falls
      within the scope of any of those exceptions. Neither Roberts v.
      Furst, 385 Pa. Super. 530, 561 A.2d 802 (1989), nor Kraisinger
      v. Kraisinger, 928 A.2d 333, 340 [(]Pa. Super. 2007), both of
      which are cited for the proposition that “parties can make an
      agreement as to child support if it is fair and reasonable, made
      without fraud or coercion, and does not prejudice the welfare of
      the children,” can avail [Husband] the instant case. Absent
      sufficient evidence in the record to support a finding that the MSA
      child support provision was fair and reasonable, that it was made
      without fraud or coercion, and that it does not prejudice the
      welfare of the children, the Hearing Officer correctly determined
      that the purported limitation on child support violated
      Pennsylvania public policy, and this [c]ourt declined [Husband’s]
      invitation to disturb that determination. [Husband] similarly failed
      to persuade the [c]ourt that an award of counsel fees was
      appropriate in this circumstance.

            This [c]ourt concluded, and remains convinced on appeal,
      that the Report and Recommendations reflected the Hearing
      Officer’s reasonable efforts to resolve the parties’ claims in light
      of the Commonwealth’s interest in enforcing child support


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       obligations for its citizens. The [c]ourt agrees with the Hearing
       Officer’s conclusion that the child support provision of the parties’
       MSA was inconsistent with the public policy of the Commonwealth,
       and that neither party was entitled to counsel fees.

TCO at 3-4.

       Now, on appeal, Husband raises two issues for our review:

      1. Whether the trial [court] erred as a matter of law and abused
         its discretion in entering a support order against [Husband] in
         contravention of the parties[’] agreed marital settlement
         agreement dated November 23, 2016?

      2. Whether the trial court erred as a matter of law and abused its
         discretion in failing to award counsel fees in contravention of §
         12 of the parties[’] agreed marriage and property settlement
         agreement dated November 23, 2016?

Husband’s brief at 2.1

       This Court’s review of a marital settlement agreement is governed by

the following:

             The following legal principles are applicable in the review of
       a marriage settlement agreement. “A marital support agreement
       incorporated but not merged into the divorce decree survives the
       decree and is enforceable at law or equity.           A settlement
       agreement between spouses is governed by the law of contracts
____________________________________________


1 Initially, in her brief, Wife suggests that Husband has waived all issues on
appeal in that (1) he failed to file a statement of errors complained of on
appeal and that (2) he failed to properly designate the reproduced record.
Wife’s contentions are without merit. The trial court here did not issue an
order requiring the submission of a statement. See Commonwealth v.
Antidormi, 84 A.3d 736, 745 n.7 (Pa. Super. 2014) (stating “[t]he
requirements of Rule 1925(b) are not invoked in cases where there is no trial
court order directing an appellant to file a Rule 1925(b) statement”). Despite
some deficiencies in the reproduced record, this Court is able to review the
issues Husband has raised on appeal. See also Wells Fargo Bank N.A. v.
Spivak, 104 A.3d 7, 10 n.6 (Pa. Super. 2014) (indicating that this Court “will
decline to quash an appeal where effective appellate review is not precluded
by the deficiencies of [a] reproduced record”).

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     unless the agreement provides otherwise.”      Stamerro v.
     Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005) (citations and
     quotations omitted).

           In conducting our review of the court’s holding as to the
     marriage settlement agreement, we remain cognizant of the
     following:

           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.

     Id. at 1257-1258 (citations and quotations omitted).

           When interpreting a marital settlement agreement,
           the trial court is the sole determiner of facts and
           absent an abuse of discretion, we will not usurp the
           trial court’s fact-finding function. On appeal from an
           order interpreting a marital settlement agreement, we
           must decide whether the trial court committed an
           error of law or abused its discretion.

     Id. at 1257 (citations and quotations omitted).


Kraisinger, 928 A.2d at 339.

     Husband’s first argument centers on Paragraphs 7 and 8 of the MSA,

which provides that Husband agrees to give up his right to an alimony

payment from Wife to offset Husband’s child support payment to Wife for a

five-year period from the date the parties sign the MSA. Specifically, Husband

asserts that Pa.R.C.P. 1910.16-4(e) provides for this type of arrangement.

Subsection 4(e) provides:




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       (e) Support Obligations When Custodial Parent Owes
       Spousal Support. If children are residing with the spouse
       (custodial parent) obligated to pay spousal support or alimony
       pendente lite and the other spouse (non-custodial parent) has a
       legal obligation to support the children, the guideline spousal
       support or alimony pendente lite amount is determined by
       offsetting the non-custodial parent’s child support amount and the
       custodial parent’s spousal support or alimony pendente lite
       amount, and awarding the net difference either to the non-
       custodial parent as spousal support/alimony pendente lite or to
       the custodial parent as child support as the circumstances
       warrant.[2]


       Husband further asserts that the court was aware of the factual basis

underlying the parties’ MSA, namely, the disparity in the parties’ incomes, the

length of the marriage and that Wife owed Husband more in spousal support

than Husband owed Wife in child support. Husband also contends that the

MSA was entered into without fraud or coercion, noting that Wife was

represented by counsel throughout the process and that the MSA would result

in Wife’s saving of $16,675.20 over the five-year period that she would not be

obligated to pay spousal support. Husband concludes his argument relating

to his first issue by stating:

       There was never an attempt to “repurpose” the payments for
       equitable distribution nor bargain away support.           Specific
       language was also included as to what happens after 5-years:
       [Husband] to pay child support to [Wife]. The parties were aware
       that child support is “modifiable” and made specific provisions for
       the seamless reinstatement of child support after five years
       lapsed. [Husband] was not dodging support but giving up his
       alimony every month, which [Wife] was [c]ourt ordered to pay.
       The [a]greement clearly did not prejudice the children and was
____________________________________________


2 Subsection (e) further provides the manner in which the child support and
the spousal support are calculated and how they are offset.

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      fair and reasonable. To ascertain anything else is very prejudicial
      to [Husband], since he gave up his right to [a]limony for 60-
      months, claims which he can no longer seek as the Decree in
      Divorce was entered by the [c]ourt on December 21, 2016.

Husband’s brief at 14.

      In Reber v. Reiss, 42 A.3d 1131 (Pa. Super. 2012), this Court

recognized that

      “[i]n Pennsylvania, a parent cannot bind a child or bargain away
      that child’s right to support.” Kesler v. Weniger, 744 A.2d 794,
      796 (Pa. Super. 2000). Nonetheless, we have also held that
      “under Robert [v. Furst, 385 Pa. Super. 530, 561 A.2d 802
      (1989)], parties can make an agreement as to child support if it
      is fair and reasonable, made without fraud or coercion, and does
      not prejudice the welfare of the children.”       Kraisinger v.
      Kraisinger, 928 A.2d 333, 340 (Pa. Super. 2007).

Id. at 1141.

      The trial court recognized that the above statement of the law

controlled, but concluded that there was insufficient evidence in the record to

support a finding that the child support provisions in the MSA were “fair and

reasonable, made without fraud or coercion, and [did] not prejudice the

welfare of the children[.]” TCO at 3. Essentially, and without any citation to

authority, the trial court relied on the Hearing Officer’s determination that the

support provisions in the MSA violated Pennsylvania public policy.           We

disagree as to this conclusion in that Subsection (e) provides for the exact

setoff that the parties included in their MSA. However, we are compelled to

examine the specific facts included in the Hearing Officer’s Report and

Recommendation that form the basis for concluding that the provision in the



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MSA “is not reasonable and is prejudicial to the children.” Hearing Officer’s

Report and Recommendation (R&R) at 2.

     In granting Wife’s request for child support, the Hearing Officer initially

recognized that Section 3105(b) of the Divorce Code provides that “[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.S.C. § 3105(b). Thus, the Hearing Officer stated:

     The change[d] circumstances are[:] 1. both parties[’] income[s]
     have increase[d;] 2. [c]ustody was modified after the MSA and
     this was relied upon in signing the MSA ([Wife’s Ex. 4);] 3. [c]hild
     support guidelines have changed[;] 4. [t]he term regarding child
     support is not reasonable and is prejudicial to the children.

     Case law supports an agreement that is entered without fraud or
     coercion but it is to be fair and re[a]sonable and does not
     prejudice the welfare of the children. Kraisinger v. Kraisinger[,]
     928 A.2d 333 (Pa. Super. 2007)[.] This court agrees there is no
     fraud, coercion or undue influence. However, this term is not fair
     and reasonable or a benefit to the children. The original support
     order from Mercer [C]ounty dated 8/26/15 has [Wife’s] income
     [at] $5,982 and [Husband’s at] $3,307.44. The child support was
     $820.49 and [$]118.50 on arrears and fees. Then on October 16,
     2015[,] this obligation ended based on [Husband’s] APL claim and
     [Wife] was the payor of $277.92 to [Husband] based on the offset
     of[]child support. The parties entered their MSA and the APL order
     was terminated. Based on their current net incomes [Wife]
     $7,712.51 ([g]ross $113,189 + bonus of $16,945.77) and
     [Husband] [] $3,883 (base [$]41,350 and annualized overtime
     $19,928=$61,278 )[, t]he basic child supp[]ort is $734.44 +
     $8.06 for health insuranc[e] for a total of $742.50. Currently
     Father pays for only 50% of school supplies and school clothes per
     the MSA. This is a significant difference between guideline child
     support and paying for clothes and supplies.

     The [c]hildren were 11 and 10 in November of 2016 and will be
     16 and 15 in five years. [Husband’s] contribution to 50% of


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      clothes and school supplies is extremely below what they need for
      basic shelter costs.

      The current expenses [for which Husband] is responsible is far
      from fair and reasonable and it is prejudicial to the welfare of the
      children. [Husband] states he is prejudiced as he waived his claim
      to alimony and is out of court since the decree is entered. This is
      purely speculation as to whether [Husband] would have been
      entitled to alimony. The factors for determining alimony are under
      23 [Pa.C.S. §] 3701.         [Husband] uses his APL amount as
      potentially alimony, however that is improper. A review of the
      MSA and the assets and debts indicate that Father received 64%
      of the assets after the debt for a car was paid. The children’s
      welfare is most important. As in Kost v. Kost[,] 757[ A.2d] 952
      [(Pa. Super. 2000)], where the amount of child support agreed
      upon by mother and father differed from guideline ranges
      significantly, in that guideline ranges recommended a support for
      child which was 75% more than father was currently paying under
      [the] agreement, Superior Court would presume that agreement
      did not provide fair and just support. [Husband’s] Exhibit 9
      indicates he spen[t] over $700 in October for clothes and
      supplies[.] [T]his court finds Father is not spending $700 a month
      on these items and he can seek 50% reimbursement per the
      agreement if the court found it was valid. [Husband] may want
      to bring up the extracurricular [amounts] that he is providing.
      [These are] additional expenses and [are] not the basic child
      support.     Additionally, [Wife] will not have to pay for her
      proportionate share.

      For all the reasons above and in further argument for public policy,
      the children are entitled to a fair portion of [Husband’s] income.
      The term set forth in the MSA does not provide for it[;] thus a
      child support award is warranted.

R&R at 2-3.

      Thus, it is apparent that the Hearing Officer determined that the terms

of the MSA were not fair and reasonable and were prejudicial to the welfare

of the children. Moreover, the trial court concurred with the Hearing Officer’s

decision and based its decision to order Husband to pay on the facts and


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reasoning contained therein. Although we note that parties are entitled to

enter into agreements such as the one that is in controversy here, they are

required to follow the dictates of the Reber decision, quoted above, and

refrain from agreeing to terms that are not fair and reasonable or are

prejudicial to the welfare of the children.        See Reber, 42 A.3d at 1141.

Accordingly, we are compelled to decline relief to Husband in relation to his

first argument on appeal.

       In his second issue, Husband asserts error by the trial court in failing to

award counsel fees as set forth in Paragraph 12 of the MSA. That paragraph

provides:

       8. Default. If either party defaults on any of the terms, provisions
       or obligations herein set forth, and it becomes necessary to
       institute legal proceedings to effectuate the performance of any
       disagreement. Then, the party found to be in default shall pay
       reasonable expenses, including reasonable attorney’s fees,
       incurred in connection with such enforcement proceedings.

MSA at ¶ 12. Essentially, Husband argues that the terms of the MSA are clear

and that Wife’s filing for child support equated with a default of Paragraphs 7

and 8 of the MSA. Due to the fact that Husband failed to carry his burden to

prove a default by Wife, he is not entitled to an award of attorney’s fees.

Moreover, Wife should not be penalized for pursuing the children’s rights. See

Kraisinger, 928 A.2d at 345.3

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3 We note that in response to this issue, Wife first contends that Husband’s
attorney fees argument was waived in that he did not include it in his



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       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2019




____________________________________________


exceptions to the Hearing Officer’s Report and Recommendation or in his brief
supporting those exceptions. Our review of those documents belies Wife’s
assertion.

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