J-A04037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LYNN REMINGTON,                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

KELLY KROHN,

                         Appellee                     No. 616 WDA 2015


              Appeal from the Order Entered March 25, 2015
            In the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD07-7323-008


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 13, 2016

      Appellant Lynn Remington (“Mother”) appeals from the March 25,

2015 order adopting a master’s report and recommendation and denying

Mother’s petition for modification of child support from Kelly Krohn

(“Father”). We affirm.

      Mother and Father were divorced in 2010 and signed a final support

agreement on April 5, 2011 (“Agreement”). Petition for Modification of Child

Support, 7/1/14, at Exhibit B.       The parties have three children.   One is

emancipated; the other two are teenagers (“Son,”             “Daughter,” and

collectively “the Children”).   By court order, Mother and Father equally

shared legal and physical custody of the Children. Id. at Exhibit A, ¶¶ 1, 2.

According to the Agreement, Mother and Father agreed that their incomes

were approximately equal and that neither would owe guideline child support
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to the other.      Agreement, 4/5/11, at ¶¶ 2.          Rather, Mother would be

responsible for Son’s expenses, and Father would be responsible for

Daughter’s expenses; expenses included tuition at a private school (“the

School”), extra-curricular activities, camps, clothing, and miscellaneous

costs. Id. at ¶¶ 4–7, 12. Regarding modification, the Agreement provided

as follows: “This Agreement shall only be modifiable based on the disability

or death of either party, or if either party should suffer an involuntary

underemployment reducing their income by at least 50%.” Id. at ¶ 13. As

of signing the Agreement, Mother was a self-employed orthodontist with a

net monthly income of $21,405. N.T., 10/24/14, at 97. Father was an “M.D.

researcher with Eli Lilly” with a net monthly income of $15,344.           N.T.,

10/29/14, at 42.

       In the fall of 2013, Son, who was in eighth grade, began experiencing

academic and behavioral problems.1               N.T., 10/24/14, at 23–24; N.T.,

10/29/14, at 59–60. The School notified Mother and Father of Son’s issues

and offered suggestions for improvement. N.T., 10/24/14, at 25.          Mother

withdrew Son from the School as of January 31, 2014, and enrolled him in

an out-of-state boarding school for boys (“the Boarding School”) with almost

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1
   Prior to eighth grade, Son had reading difficulties, repeated first grade,
and had been diagnosed with attention deficit hyperactivity disorder. N.T.,
10/24/14, at 35–38, 57, 60, 84; N.T., 10/29/14, at 66. During eighth
grade, he was emotionally withdrawn and unmotivated. Id. at 40–42, 56–
58.



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twice the net tuition of the School, $41,994 per academic year versus

$22,435.    N.T., 10/24/14, at 29, 93–94.             Father deferred to Mother

regarding Son’s education and did not object to her considering the Boarding

School. Id. at 53, 62, 66, 68–69; N.T., 10/29/14, at 61–62, 67, 83. While

enrolled at the Boarding School, Son earned good grades and saw a

therapist weekly. N.T., 10/24/14, at 70–74; N.T., 10/29/14, at 84.

      Mother filed a petition for modification of support on July 1, 2014

(“Petition”), averring changes in the parties’ circumstances.              Petition,

7/1/14, at ¶ 7. Upon Father’s request, the trial court bifurcated the issues of

whether modification of the Agreement was warranted and, if so, what

amount of support was owed by either party.             Order of Court, 9/3/14.

Mother did not object to the bifurcation order.

      Special Master Peggy Ferber conducted a modification hearing over

two days in October of 2014. Thereafter, she determined that Mother had

not   established   any   significant   change   in   circumstances   to   warrant

modification and that the Agreement did not bargain away Son’s right to

support.   Report and Recommendation, 11/5/14, at 6.           Having concluded

that modification was not warranted, the Master did not address the

amount-of-support issue.

      Mother filed exceptions on November 7, 2014, which the trial court

denied, adopting the Master’s Report and Recommendation and making it a




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final order. Order of Court, 3/25/15. This appeal followed. Mother and the

trial court have complied with Pa.R.A.P. 1925.

      On appeal, Mother presents three questions for our consideration:

      1.    Whether the Trial Court erred in determining that the
            support agreement of the parties was not modifiable.

      2.    Whether the Trial Court erred in relying on the lack of
            income information regarding [M]other’s ability to pay
            [Son’s] school expenses as the matter was bifurcated and
            no income information was provided, with the court
            refusing to address any financial information of the parties
            during the proceeding.

      3.    Whether the Trial Court erred in failing to recognize the
            significant increase in the school expenses for [Son] from
            the extent of schooling expenses that were in existence at
            the time of the parties’ support agreement.

Mother’s Brief at 3.

      Our review is guided by the following standards:

      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.

K.J.P. v. R.A.P., 68 A.3d 974, 978 (Pa. Super. 2013) (citation omitted).

Despite the terms of a child support agreement, modification is allowed upon

a showing of changed circumstances.        See 23 Pa.C.S. § 3105(b) (“A


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provision of an agreement regarding child support, visitation or custody shall

be subject to modification by the court upon a showing of changed

circumstances.”). Moreover:

      [w]hen modification of a child support order is sought, the
      moving party has the burden of proving by competent evidence
      that a material and substantial change of circumstances has
      occurred since the entry of the original or modified order. The
      lower court must consider all pertinent circumstances and base
      its decision upon facts appearing in the record which indicate
      that the moving party did or did not meet the burden of proof as
      to changed conditions.

McClain v. McClain, 872 A.2d 856, 863 (Pa. Super. 2005) (quoting Samii

v. Samii, 847 A.2d 691, 695 (Pa. Super. 2004)).

      Mother first complains that the trial court erred in determining the

Agreement was not modifiable.     Mother’s Brief at 12.   Relying on section

3105(b) of the Divorce Code, 23 Pa.C.S., Mother argues that the Agreement

was modifiable due to three changes in circumstances: (1) an increase in

Father’s income; (2) an increase in Mother’s custodial time; and (3) the

increase in Son’s educational expenses. Mother’s Brief at 16–19, 23.

      The trial court rejected Mother’s premise and explained its ruling as

follows:

            Contrary to Mother’s assertion, I did not determine that
      the Agreement was not modifiable.           Instead, I determined
      modification was not warranted under the particular
      circumstances presented.      I found the Agreement was not
      subject to modification based on Mother’s decision to send Son
      to a significantly more expensive school than that which he was
      attending at the time the Agreement was executed. Had Mother
      (or Father) instead, enrolled a child in much more expensive
      camps, sports, or extra-curricular activities than contemplated at

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       execution, I would not have modified the Agreement to require
       the other parent to contribute.

             I also determined, as did the Master, that the Agreement
       did not bargain away the children’s right to support. At the time
       of the parties[’] hearing in 2010, Mother made 58% of the
       combined income of over $35,000.00 per month. {TR. 1 p. 97}
       Mother did not, in her petition for modification nor in her
       testimony, indicate an inability to pay for the increased cost of
       Son’s schooling, or that the added expense prejudiced her
       children.

             In Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super.
       2007), the [C]ourt stated, “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.” I do not find that the children’s welfare is jeopardized
       or prejudiced. Mother testified that all of the children’s needs
       were met while in her care. {TR. 1 p. 98}[2]

                                          * * *

            The testimony, in fact, reveals that Mother knew that it
       was she who was taking on an extra expense and that she also
       knew Father was not obligated to pay for it. She sent Father an
       e-mail in which she “asked him if he would consider helping.”
       {TR.2 p. 34} This testimony demonstrates that Mother was
       aware that Father was not obligated to contribute to this
       expense pursuant to their Agreement.

             Father testified, through counsel, that he does not find the
       increased cost of the boarding school to be reasonable and
       necessary and that therefore, those increased costs do not
____________________________________________


2
  Mother also refers to Kraisinger. Mother’s Brief at 15–17. However, her
application of that decision is inapposite. Mother cites Kraisinger for the
proposition that “agreements that require a party to pay ‘substantially less
child support than the guidelines would require . . . is not fair or reasonable,
and prejudices the welfare of the children.’” Id. at 15. However, the case
at hand is not a guidelines case, as the parties agreed that “neither party
would have any obligation to the other for guideline support.” Agreement,
4/5/11, at ¶ 13.



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     constitute a “significant change of circumstances which would
     give rise to modification.” {TR.2 p. 50} Because Mother took
     on those expenses without securing Father’s consent, I agreed
     with Father.

Trial Court Opinion, 5/27/15, at unnumbered 5–7.

     Our review of the record reveals support therein for the trial court’s

findings. Pursuant to the Agreement, Mother was contractually responsible

for Son’s tuition expenses. Agreement, 4/5/11, at ¶¶ 4, 12; N.T., 10/24/14,

at 9–10, 31–33.    Moreover, Mother chose to send Son to an out-of-state

boarding school without informing Father of the ultimate decision or

informing   the   Boarding   School   about   the   parties’   shared   custody

arrangement. N.T., 10/24/14, at 64, 86–87, 88–89. Although Mother asked

Father if he would consider helping with the additional tuition, she did not

ask him for a specific amount of financial help, and she did not secure his

consent to contribute to the additional expense.     Id. at 64, 85, 90; N.T.,

10/29/14, at 34. Mother chose to incur the additional cost and was able to

meet Son’s expenses. N.T., 10/24/14, at 98–99. Based on this evidence,

we discern no abuse of the trial court’s ruling that modification of the

Agreement—although legally permissible—was not warranted based on a

change of circumstances.

     As for Mother’s custody argument, the trial court did not expressly

address whether the custodial schedule warranted modification of support.

However, Father responds as follows:




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            It was Mother’s testimony at trial that Father has never
      maintained 50/50 custody of [Daughter] and [Son] since the
      implementation of the June 15, 2010 custody order. The Final
      Support Agreement was entered into 10 months after the entry
      of the custody order, and at a time when Father was to have
      equally shared custody on a week on/week off basis pursuant to
      that Order. If Mother’s testimony is correct, and Father never
      exercised equally shared custody under the June 15, 2010
      Order, his continuing to not do so after the signing of the April 5,
      2011 Final Support Agreement could not constitute a significant
      change in circumstances warranting modification.

Father’s Brief at 6 (internal citations omitted). We agree.

      Upon review of Mother’s testimony, we consider her assertion that a

change in custodial time warrants modification disingenuous.            Mother

acknowledged that the non-custodial parent had the right of first refusal if

the custodial parent could not provide overnight care on a school night.

N.T., 10/24/14, at 79–80; Agreement, 4/15/11, at ¶ 14. Both Mother and

Father indicated that they sometimes complied with this provision.           N.T.,

10/24/14, at 47, 81; N.T., 10/29/14, at 57.        Also, Mother stated in her

petition and testified that they had not maintained the 50/50 custody

arrangement.     Petition, 7/1/14, at ¶ 8; N.T., 10/24/14, at 78; N.T.,

10/29/14, at 10–20.       According to Mother, she did not enforce the

Agreement by ensuring that Son spent time with Father, even if Son

objected or resisted.   N.T., 10/24/14, at 83; N.T., 10/29/14, at 24–27.

Moreover, Mother did not testify that she was unable to provide for Son

because of the custody situation. We conclude, therefore, that Mother failed




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to meet her burden of proof in arguing that the custodial schedule warranted

modification of the Agreement.

      In her second issue, Mother assails the trial court for refusing to

address financial information of the parties. Mother’s Brief at 19. According

to Mother, the near doubling of Father’s income “is [a] substantial change of

circumstance” justifying modification of the Agreement. Id.

      The trial court rejected Mother’s argument as follows:

             I bifurcated the proceedings upon Motion by Father. I
      agreed with the premise of that Motion – that if there was no
      legitimate reason to modify the Agreement, there was no reason
      for the parties to engage in the extensive discovery and
      attendant cost necessary to determine each other’s incomes and
      their expenses. Mother’s Petition did not assert a change in
      income; the only change asserted as a basis for modification was
      Son’s tuition increase.

            There is no question whether Mother or Father can afford
      to pay the increased tuition. The only issue was whether Mother
      was entitled to modification solely because she was paying more
      for Son’s education than she was at the time of the Agreement,
      after making what was basically a unilateral decision to incur
      that extra expense. Since I decided she was not, and since
      Mother never claimed a significant change in their incomes,
      there was no need to move forward to determine the actual
      incomes of the parties.

Trial Court Opinion, 5/27/15, at unnumbered 7.

      Upon review, we affirm the trial court’s ruling, but on a different basis.

See 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) (“[W]e may

affirm a trial court's ruling on any basis supported by the record on

appeal.”)). Contrary to the trial court’s finding, Mother did raise an increase

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in Father’s income as a basis for modification of the Agreement:             “The

parties’ incomes have also not remained approximately equal, with the

father earning approximately $400,000 per year and the mother earning

approximately $230,000 per year.” Petition, 7/1/14, at ¶ 23. Moreover, at

the hearing, Mother attempted to offer evidence of Father’s increased

income.      N.T., 10/29/14, at 53.       However, because the hearing was

bifurcated, Mother did not object to the bifurcation, and Mother had not

offered evidence of her own income, the Master refused to consider evidence

of Father’s income. Id. at 53–54. The trial court agreed, and so do we.

        Son’s tuition was Mother’s contractual obligation; therefore, under the

procedural posture of this case, Father’s income had no bearing on the

question of who was responsible for Son’s tuition, a fact Mother knew as

evidenced by her asking Father “if he would consider helping.” Id. at 34.

Accordingly, we conclude that the trial court did not abuse its discretion in

refusing to consider the parties’ incomes.

        Lastly, Mother argues that the trial court erred in failing to consider

Son’s    increased    tuition   and   expenses   as   a   substantial   change   in

circumstances warranting modification of the Agreement. Mother’s Brief at

23. In response, Father argues that the increased tuition is not a reasonable

or necessary expense pursuant to the child support guidelines.            Father’s

Brief at 4 (citing Pa.R.C.P. 1910.16-6(d)).

        The trial court disposed of this issue as follows:


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           Clearly, Mother is incurring higher educational expenses
     than she was at the time the parties entered into the
     Agreement. The Agreement does not require that the parties
     will always have comparable educational or extracurricular
     expenses. Indeed, it contemplates Mother having an additional
     year of tuition after Daughter’s graduation.

            As for Father’s statements that Mother was to “take the
     lead”, I do not find that this equates to Father telling Mother he
     will acquiesce in whatever she decides. The parties share legal
     custody of the children. Father still expected a say in the
     decision, just as he gives Mother her say although he “takes the
     lead” with regard to Daughter’s education. {TR.2 p. 92–93}

           In her Memorandum of Law submitted to the Master prior
     to hearing, Mother argues that the Agreement is unenforceable
     because it violates the public policy of this Commonwealth,
     which prohibits a parent from bargaining away a child’s right to
     support, regardless of the validity of the Agreement in all other
     respects between the parties. Sams v. Sams, 808 A.2d 206
     (Pa. Super. 2002).

           The Sams [C]ourt provided that such Agreements could
     not divest the courts of jurisdiction and that it was for the courts
     to determine the validity of such Agreements – making them
     modifiable by the court, regardless of the terms. In this case, I
     did not find I was divested me [sic] of jurisdiction to modify the
     parties’ agreement if I felt it was appropriate. Under the current
     circumstances presented, I do not find that this Agreement
     deprives these children of their right to support.

                                 Conclusion

           By asking Father if he would consider helping with the
     increased tuition, Mother tacitly acknowledged he was not
     obligated to do so. . . .

Trial Court Opinion, 5/27/15, at unnumbered 7–8.

     Upon review, we discern no abuse of the trial court’s discretion.      In

doing so, we first address Mother’s reliance on Gibbons v. Kugle, 908 A.2d

916 (Pa. Super. 2006). According to Mother, the trial court erred in failing

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to apply the Gibbons “standard for determining whether private school

needs are reasonable and necessary.”               Mother’s Brief at 24.   Mother is

correct that the Gibbons Court held as follows:

        A private school education may be a reasonable need for a child
        if it is demonstrated that the child will benefit from such and if
        private schooling is consistent with the family’s standard of living
        and station in life before the separation. If these factors are
        proved, a court may order a parent to provide financial support
        for the private schooling of a minor child.

Mother’s Brief at 24–25 (quoting Gibbons, 908 A.2d at 920).                 However,

Mother ignores the fact that Gibbons—and the additional cases she cites at

pages 28 and 29 of her brief—involved court-ordered child support pursuant

to the Pennsylvania guidelines, Pa.R.C.P. 1910.16-6.              In those cases, the

court fashioned a child support order by applying the guidelines to the

circumstances of the individual families.3

        Contrarily, as noted, the case at hand involves Mother and Father’s

mutual agreement regarding child support and, specifically, academic

expenses.     Pursuant to the Agreement, Mother assumed responsibility for

Son’s    educational     expenses,     and     Father   assumed    responsibility   for

Daughter’s educational expenses. Agreement, 4/5/11, at ¶¶ 4–7, 12. With

Father’s acquiescence, Mother investigated and chose to enroll Son in a

school that is twice as expensive but more amenable to Son’s behavioral and
____________________________________________


3
    Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009) (involving
private school); D.H. v. R.H., 900 A.2d 922 (Pa. Super. 2006) (involving
out-of-state medical facilities).



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academic needs. Mother has not alleged that she cannot afford the tuition

and related expenses for Son’s attendance at the Boarding School. Rather,

recognizing that Father is not obliged to pay for Son’s educational expenses,

Mother seeks contribution from Father.                    Given Mother’s contractual

obligation to pay for Son’s schooling and her decision to incur additional

academic-related expenses for Son, we disagree with Mother that an

increase    in   Father’s   income      constitutes   a    change   of   circumstances

warranting modification of the Agreement.

       In sum, we discern no abuse of the trial court’s discretion in

concluding that Mother did not present sufficient evidence of changed

circumstances.4 Therefore, we affirm the order denying modification of the

Agreement.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016
____________________________________________


4
   We concur in the trial court’s final observation: “[T]his Family’s inability
to find a way to share the added costs in some fashion is unfortunate. It will
not likely do anything to help this family communicate in the future or help
heal whatever rifts exist in their relationships.” Trial Court Opinion, 5/27/15,
at unnumbered 8–9.



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