J-S21005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BOOLANCHAI KETSIRITHAWINWONG            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 URIAH WELLS                             :
                                         :
                    Appellant            :   No. 1547 WDA 2019
                                         :

             Appeal from the Order Entered September 20, 2019
     In the Court of Common Pleas of Allegheny County Family Court at
                           No(s): FD 17-004955


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED APRIL 24, 2020

      Uriah Wells (Husband) appeals from the order, entered in the Court of

Common Pleas of Allegheny County, dismissing, in part, his exceptions to the

Master’s recommendation and enforcing the parties’ May 8, 2015 marital

settlement agreement (MSA) in favor of Boolanchai Ketsirithawinwong (Wife).

After careful review, we affirm.

      The parties married on December 28, 2002 in Union City, Pennsylvania.

They are the parents of three minor children, ages 10, 13 and 16. During the

marriage, Wife was a stay-at-home parent and obtained bachelor’s and

master’s degrees in information science. Husband is a certified public

accountant.

      The parties moved to New Jersey and, in 2012, they separated. Wife

filed for divorce and, on May 8, 2015, the Sussex County Court in New Jersey
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entered a divorce decree, which incorporated1 the parties’ MSA of the same

date.    At that time, Wife continued to reside in New Jersey, and Husband

moved to Crawford County, Pennsylvania.

        In April 2016, Wife moved to Allegheny County and obtained a job

earning $70,000 per year. In June 2017, Husband moved to Austin, Texas,

and obtained employment earning $140,000 per year.2          Wife has primary

physical custody of the children. Father has partial physical custody of the

children. The parties share legal custody.

        [T]he MSA provided that Husband would pay Wife alimony at a
        rate of $17,000 per year for seven years, beginning November 1,
        2015. The MSA allowed that either party could apply to a court to
        review alimony upon a change of circumstances. However, it also
        made clear that, “[r]egardless of Husband’s employment
        circumstance, alimony shall commence on November 1, 2015.”[3]
        . . . Pursuant to the MSA, Husband [] was to pay child support of
        $263 per week retroactive to February 6, 2015, with arrears set

____________________________________________


1  Generally, whether an agreement merges into a decree or is simply
incorporated affects the parties’ ability to modify or enforce the agreement.
See Ballestrino v. Ballestrino, 583 A.2d 474, 476 (Pa. Super. 1990)
(incorporated agreement is governed by law of contracts; merged agreement
is subject to full range of modification permitted a court order). Cf. 23
Pa.C.S.A. § 3105(b) (permitting modification of child support orders upon
showing of changed circumstances regardless of merger).

2At the time of the September 4, 2018 hearing before Special Master Serena
Newsom, Esquire, Husband testified that his salary had increased to
$150,000. N.T. Hearing, 9/4/18, at 52.

3 See MSA, 5/8/15, at ¶ 44. The MSA set Husband’s gross annual income at
approximately $86,000, even though Husband was unemployed at that time.
At the time the parties entered into the MSA, Wife had been working for ten
months and had an income of $40,000. Id. at ¶¶ 21, 22, 43; N.T. Hearing,
supra at 36.

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      at $3,419. . . . Husband agreed to pay $35 per week toward
      [Wife’s student] loan obligations of $397 per month.

Trial Court Opinion, 12/18/19, at 2-3, citing MSA, 5/8/15, at ¶¶ 23, 31, 33,

39-40, 44 (emphasis in original).

      Following execution of the MSA, Husband filed duplicate petitions to

modify child support and alimony in different jurisdictions, complicating the

already convoluted procedural history of this case. The Honorable Kathryn

Hens-Greco clarified as follows:

      After the MSA was executed [on May 8, 2015], Husband quickly
      turned around and petitioned the New Jersey [c]ourt to decrease
      his child support, but his request was denied on November 20,
      2015. That [c]ourt then also ordered that Husband pay child
      support and arrears by garnishment from his pay of $95,000 that
      he was earning at [] an accounting firm. The Master noted that
      Husband’s pay with the accounting firm was garnished through
      December 24, 2015, except the $35 toward loan payments was
      not included.     Thereafter, Husband moved to Meadville in
      Crawford County, Pennsylvania. In February 2016, Husband filed
      in two places, both New Jersey and Crawford County, to reduce
      his child support payments. He succeeded in obtaining an [o]rder
      from Crawford County on March 16, 2016, reducing his child
      support payments from $333 per week to $381 per month. . . .
      Meanwhile, Husband also participated in a hearing on his
      simultaneous New Jersey petition to reduce child support and
      obtained an order dated March 1, 2016, for a different amount of
      arrears than was ordered in Crawford County[,] with a hearing
      date in New Jersey of March 22, 2016. At a subsequent hearing,
      Wife informed the New Jersey [c]ourt that Husband had an action
      underway in Crawford County, and the New Jersey [c]ourt
      dismissed Husband’s modification petition. In April of 2016, Wife
      moved to Allegheny County to take a better position earning
      approximately $70,000. Not long after, on May 2, 2016, Husband
      filed yet another petition to modify child support even though a
      de novo hearing was already pending at his request. As of May
      23, 2016, Crawford County suspended Husband’s support order,
      with Husband directed to pay only $51 per month on his arrears
      of approximately $15,000. . . . In June of [2017], Husband

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      obtained employment in Texas for approximately $140,000 per
      year. Nonetheless, in that very same month, he filed a motion in
      New Jersey to decrease his alimony payments – which he had not
      been paying in any event– and to vacate his arrears. The New
      Jersey [c]ourt ultimately declined to hear the matter for lack of
      jurisdiction. Although Husband now had a six-figure income, he
      took no steps to send any additional child support or alimony
      payments to Wife.

Trial Court Opinion, 12/18/19, at 3-5 (citations omitted).

      It was not until the end of June 2016 that Husband updated his

employment information, and Crawford County resumed wage attachment for

Husband’s child support obligation–$102 per month, representing $51 per

month for three children, plus $51 toward arrears. In October of 2017, the

process of transferring the child support case from Crawford County to

Allegheny County began; Wife was notified that she could not file a petition to

modify support in Allegheny County until the transfer had been completed, a

process that took three months.

      On January 15, 2018, with the transfer completed, Wife filed a petition

to modify child support; Husband filed an emergency petition to modify

alimony on March 23, 2018. The Master consolidated those petitions, held a

hearing on March 26, 2018 and ordered Husband to pay child support of

$1,689.48 per month, with $160 per month on arrears of $3,697.19,

retroactive to February 14, 2018. The master continued Husband’s petition

to modify alimony pending registration of the out-of-state MSA.

      On June 18, 2018, the MSA was registered in Allegheny County, and the

Master heard argument on alimony modification and enforcement of the MSA.


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On April 19, 2019, the Master issued her report and recommendation. The

Master recommended denying Husband’s petition to modify alimony.          The

Master also recommended granting Wife’s petition to enforce alimony under

the MSA, retroactive to February 25, 2016, awarding Wife retroactive child

support for the three children for the period June 15, 2017 (Husband’s date

of employment in Texas) through February 13, 2018, in the amount of

$1,772.99 per month, and adding $2,500 to Husband’s child support arears.

Finally, the Master recommended Husband pay a lump sum of $6,230 toward

Wife’s student loan within 45 days.

       Husband filed exceptions to the Master’s report and recommended

order. On September 20, 2019, the court entered an order, granting in part4

and denying in part Husband’s exceptions. The order enforced: Husband’s

monthly alimony obligation retroactive to February 25, 2016; Husband’s child

support obligation for the three minor children retroactive to June 15, 2017;

and Husband’s obligation to pay $35.00 per week towards Wife’s outstanding

student loan obligation, beginning November 1, 2015 and ending upon

termination of alimony obligation. Order, 9/20/19.



____________________________________________


4  The court granted Husband’s exception with respect to the lump sum
payment. The order provides, in part: “[Husband’s] seventh exception is
granted in that he shall not be required to pay [Wife] the sum of $8,730
[representing $2,500 in child support arrears and $6,230 for Wife’s student
loan] in a lump sum; rather, [Husband] shall pay [Wife] the sum of $8,730
in 4 equal installments at 60-day intervals beginning on the 30th day from the
date of this Order.” Order, 9/20/19.

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      Husband filed a timely notice of appeal on October 18, 2019.           Both

Husband and the trial court have complied with Pa.R.A.P. 1925.         Husband

raises five issues for our review:

      1. Did the [court] err in changing the retroactivity date of
      Husband’s child support obligation despite a hearing and final
      order to which no exceptions were filed?

      2. Did the [court] err in retroactively applying Husband’s alimony
      obligation despite a consent order and testimony that showed that
      [] Wife agreed to drop alimony?

      3. Did the [court] err in determining that $2,500 in child [support]
      arrears, entered in New Jersey, were not included in the arrears
      amount transferred from New Jersey to Pennsylvania?

      4. Did the [court] err in determining that $35 per week for a
      student loan payment, entered in New Jersey, [was] not included
      in the arrears amount transferred from New Jersey to
      Pennsylvania?

      5. Did the [court] err in not modifying Husband’ alimony
      obligation, despite a substantial change in circumstances?

Appellant’s Brief, at 9.

      Husband first challenges the court’s order awarding child support to Wife

retroactive to June 15, 2017, the date Husband began his employment in

Texas. He argues: Wife did not raise this issue at the March 26, 2018 hearing;

following the hearing the Master recommended an order retroactive to

February 14, 2018; neither party filed exceptions; the order was made final

on April 24, 2018; and Wife did not appeal that order. Husband contends,

therefore, that retroactive modification of child support for the period between

June 15, 2017 and February 13, 2015 is barred by the doctrine of res judicata.

We disagree.

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      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. 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. 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. 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.

Silver v. Pinskey, 981 A.2d 284, 291-92 (Pa. Super. 2009) (en banc)

(citations omitted). “A support order will not be disturbed on appeal unless

the trial court failed to consider properly the requirements of the Rules of Civil

Procedure Governing Actions for Support, Pa.R.C.P.1910.1 et seq., or abused

its discretion in applying these Rules.” Christianson v. Ely, 838 A.2d 630,

634 (Pa. 2003) (citation omitted).

      Pursuant to Pennsylvania Rule of Civil Procedure 1910.17(a), support

actions, generally, are retroactive to the time of the filing for modification–

here, Wife’s January 15, 2018 filing. The trial court acknowledged this, but

pointed out that the rule allows for modification prior to the date of filing under

certain circumstances.

      Rule 1910.17(a) provides:

      (a) An order of support shall be effective from the date of the filing
      of the complaint or petition for modification unless the order
      specifies otherwise. In a child support case, if a change in custody
      occurs after the date of filing, but before a domestic relations
      conference is held, the trier of fact shall enter a charging order
      going forward in favor of the primary custodian that shall be
      effective from the date of the change in custody. The trier of fact


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       also may enter a retroactive arrears order in favor of the party
       who was the primary custodian at the time of filing. Such an order
       may address the period from the date of filing to the date of the
       change in custody. However, a modification of an existing
       support order may be retroactive to a date preceding the
       date of filing if the petitioner was precluded from filing a
       petition for modification by reason of a significant physical
       or mental disability, misrepresentation of another party or
       other compelling reason[,] and if the petitioner, when no
       longer precluded, promptly filed a petition.

Pa.R.C.P. 1910.17(a) (emphasis added).

       Wife testified that she was aware in June 2017 that Husband had

obtained employment in Texas, but she did not know his employer, and it was

not until late June 2017, that Husband updated his employment information

with Crawford County. N.T. Hearing, 9/4/18, at 16-17; Master’s Report and

Recommendation, 4/3/19, at 6. Further, at that time, the child support case

had not yet been transferred from Crawford County to Allegheny County. Wife

was precluded from seeking modification until that process was complete, and

transfer was not completed until January 11, 2018.         N.T. Hearing, supra at

8; Master’s Report and Recommendation, supra at 6. Within four days of the

transfer, Wife filed her petition for modification. See id. (“January 15, 2018:

Date of Wife’s Petition for Modification of Support.”).5

       Wife had a “compelling reason” for not filing for modification prior to her

January 2018 petition, and “when no longer precluded, promptly filed a

petition” within four days of the transfer.      Pa.R.C.P. 1910.17(a).   The trial

____________________________________________


5This petition was entered on the Allegheny Court of Common Pleas docket
on January 16, 2018.

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court properly considered the rules of court.           Christianson, supra.

Accordingly, we find no abuse of discretion. Silver, supra.

      We also agree with the trial court’s determination that Husband cannot

rely on res judicata to shirk his support obligation.

      Given the fact that Wife in this case did show diligence in
      attempting to secure support for the three children across three
      jurisdictions in a case so confusing that the Master had to
      undertake a careful review of the procedural history over a period
      of months, and given that Husband [] helped create the confusion
      and took no action to voluntarily support the children, this Court
      will not disturb the Master’s conclusion. The equities, law and
      policy militate in favor of holding Husband responsible for the
      support of his three children, his arguments on technicalities and
      non-substantive, procedural matters notwithstanding.

Trial Court Opinion, supra at 10. See Christianson, supra (parental support

obligation is positive duty and requires affirmative performance; laches does

not arise unless party’s rights have been so prejudiced by delay of another in

pursuing claim that it would be injustice to permit assertion of claim against

party so prejudiced); cf. Sutliff v. Sutliff, 489 A.2d 764, 781 (Pa. Super.

1985) (party entitled to support “should not be penalized for having to resort

to time-consuming court proceedings.”).

      Next, Husband claims the court erred in ordering retroactive application

of his alimony obligation because Wife “agreed to drop alimony.”   Appellant’s

Brief, at 22.   This claim is meritless. Husband has mischaracterized Wife’s

testimony.




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     At the September 4, 2018 hearing, the Master had before her the issue

of enforcement of the alimony provision in the MSA. With respect to alimony,

the MSA provides:

     “In consideration of the terms and provisions of this [MSA], the
     Wife has agreed to accept, and the Husband has agreed to pay,
     alimony to the Wife as follows: a. Seven (7) year term [of]
     alimony; b. The Husband's Alimony obligation shall be $17,000.00
     per year; and c. Shall commence on November 1, 2015[;]
     [r]egardless of husband's employment circumstances,
     alimony shall commence on November 1, 2015.

MSA, supra at ¶¶ 23, 44 (emphasis added). In support of his claim, Husband

points to Wife’s testimony on cross-examination:

     Q: Based on your petition it would appear that you don’t believe
     that Mr. Wells is paying any money toward alimony, is that your
     understanding?

     A: Yeah, because it doesn’t say anything in my provision account
     it’s for alimony support, it states only child support. Then I don’t
     have [] proof that Crawford County messed up adding my name
     in there. They say support three child, dropped alimony because
     he didn’t earn enough money to pay for alimony, support just.

     Q: You agree that you dropped alimony?

     A: Yes, I agreed.

           [MASTER NEWSOM]: I’m sorry, just so I’m clear, you said
           Crawford County dropped the alimony because there
           was not enough income to pay alimony when you were
           earning more than he was, correct?

     MS. KETSIRITHAWINGWONG: Right.

           [MASTER NEWSOM]: Thank you.

N.T. Hearing, supra at 23 (emphasis added).




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         The Crawford County order dropped the alimony because Husband was

unemployed at the time it was entered. The Master clarified Wife’s testimony

and, as the trial court noted, Wife was not a “native speaker of English,” Trial

Court Opinion, supra at 11. The Master found Wife credible and found nothing

to support Husband’s position that Wife “agreed to suspend the alimony

payments if not terminate them at [at the time of the December 2016 order].”

N.T. Hearing, 9/4/18, at 38.      In fact, the Master found Husband’s actions

contradicted this position because he filed a motion to modify alimony in June

of 2017. Master’s Report, supra at 12. “The fact-finder is entitled to weigh

the evidence presented and assess its credibility.” Green v. Green, 783 A.2d

788, 791 (Pa. Super. 2001).

         The court enforced the alimony provision pursuant to the terms of the

MSA. See 23 Pa.C.S.A. § 3105(a) (party to agreement regarding matters

within jurisdiction of court under this part, whether or not agreement has been

merged or incorporated into decree, may utilize remedy or sanction set forth

in this part to enforce agreement to same extent as though agreement had

been order of court, unless otherwise provided in agreement). We find no

error.

         In his next two issues, Husband claims Wife failed to meet her burden

of proving that $2,500 in child support arrears and $35 per week for her

student loan payment were not included in the arrears amount transferred

from New Jersey to Pennsylvania. See Habjan v. Habjan, 73 A.3d 630, 643




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(Pa. Super. 2013) (petitioner has burden of proving entitlement to relief

sought). This claim is also meritless.

      Wife sought enforcement of the relevant MSA provisions through the

New Jersey court. On December 2, 2015, the New Jersey court entered an

order directing Husband to pay $2,500 in child support arrears and directing

Husband to pay Wife’s student loan payments of $35 per week. See Order,

12/2/15 (Docket N. FM-19-69-13). Husband argues that Wife has not shown

that those amounts were not already included in arrears when the New Jersey

order was transferred to Pennsylvania. The Master found otherwise. With

respect to the $2,500 in child support arrears, the Master stated:

      No testimony and/or documentation was offered by Husband that
      he had paid this amount, in whole or in part, since [December 2,
      2015].    Furthermore, Wife testified that this amount was not
      included in any “arrears” calculation and the Master found no
      evidence in the pleadings or support orders to contradict Wife's
      testimony. [This] obligation has been outstanding since February
      6, 2015, with no payments made by Husband toward this amount
      for over 3 ½ years as of the date of the hearing.

Master’s Report, 4/1/19, at 19.

      With regard to the $35 weekly payments on Wife’s student loan, the

Master found that those payments were never garnished or paid through the

court as was intended. Further, when Crawford County assumed the case in

February 2016, there was no reference to collection of this loan repayment

owed to Wife. Id. at 20. “Notably, there was no testimony or documentation

offered by Husband that he had made any of these weekly payments to Wife.

As such, the Master[,] being presented with no evidence disputing Wife’s

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assertion that this amount has not been paid to her by Husband, Wife’s

request for relief is granted.” Id. at 20-21.

      The Master found Wife’s testimony credible, and the trial court deferred

to the Master’s credibility determination. We agree with the trial court and

conclude Wife has met her burden of proof. Green, supra.

      In his final issue, Husband claims his alimony payment should have been

reduced in light of the substantial change in circumstances.      In particular,

Husband points to the increase in Wife’s salary, from $40,000 to $70,000.

This claim is meritless.

      When reviewing a spousal support case, we must determine whether

the trial court has abused its discretion. Dudas v. Pietrzykowski, 849 A.2d

582, 585 (Pa. 2004). “Absent an abuse of discretion or insufficient evidence

to sustain the support order, this Court will not interfere with the broad

discretion afforded the trial court.” Dalrymple v. Kilishek, 920 A.2d 1275,

1278 (Pa. Super. 2007) (citation omitted).

      The parties’ MSA provides:

      Either party will have the right to make application to the [c]ourt
      to review alimony by presenting evidence of a change of
      circumstances, which may include disability or good faith
      retirement at an appropriate time. That review should include,
      but not be limited to the parties’ income and assets from all
      sources and the needs of the Husband and the Wife. At that time
      both parties agree to provide full financial disclosure as to his or
      her income, assets and liabilities[,] including a completed Case
      Information Statement certified to by the party signing.

MSA, supra at ¶ 31.


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       The Master acknowledged a change in circumstances, but declined to

reduce the payment or its duration. Notably, Husband fails to account for his

increase in salary or the fact that the ratio between his salary and Wife’s salary

has remained relatively the same since the parties entered into the MSA. The

MSA set Wife’s income at $40,000 and Husband’s income at $86,000; at the

time of the hearing, Wife was earning $70,000 and Husband was earning

$150,000.     Wife earns less than one-half of what Husband earns. Although

Husband argues he was unemployed for two years, that argument cuts both

ways. During that time, Wife was not receiving her alimony payments, which

obviously caused financial strain, and which, according the parties’ MSA, she

was entitled to “regardless of Husband’s employment circumstance.” MSA,

supra at ¶ 44.6

       We commend the Master’s clarification and analysis of this complex

procedural history, and we agree with the trial court’s order. We find no error

or abuse of discretion. Dudas, supra; Silver, supra.

       Order affirmed.




____________________________________________


6 Notably, Husband’s alimony payments lapsed in 2015. During the period
from June 2017 (when he obtained employment in Texas) to March 2018 (the
Master’s hearing addressing Wife’s petition for enforcement and Husband’s
subsequent petition to modify alimony), Husband did not revive the alimony
payments and/or voluntarily increase his child support payment, which at that
point was $102 per month for three children. See Master’s Report, supra at
11; citing PACSES (Pennsylvania Automated Child Support Enforcement
System) Order, 12/12/16.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2020




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