J-A33039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KELLY J. HOLLAND                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PATRICIA D. HOLLAND

                            Appellant                 No. 1436 EDA 2014


                  Appeal from the Decree Entered April 30, 2014
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No.: 2011-FC-1343


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                           FILED JANUARY 26, 2015

       Patricia D. Holland (“Wife”) appeals the divorce decree that was

entered April 30, 2014. Specifically, Wife challenges the December 31, 2013

order that granted in part a motion filed by Kelly J. Holland (“Husband”) to

enforce the parties’ property settlement agreement (“PSA”).       After review,

we affirm.

       The trial court summarized the factual and procedural history as

follows:

       The parties married on September 2, 1994. They separated in
       January 2011 after [Husband] learned that [Wife] ran up credit
       card bills under his name without his permission or knowledge.
       The parties subsequently engaged in negotiations pertaining to
       the distribution of their marital assets and liabilities. Following
       these negotiations, the parties entered into a [PSA] on October
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A33039-14


     3, 2011 without the benefit of counsel and prior to formally filing
     for divorce.

     [Husband] filed a divorce complaint on October 20, 2011.
     [Husband’s] sister-in-law, Daniele Holland, who worked as a
     legal assistant in a law firm in Easton, Pennsylvania, drafted the
     PSA. Both parties signed the agreement and it was filed with the
     Clerk’s Office on October 31, 2011.

     This matter came before the [trial court] based upon
     [Husband’s] Petition for Special Relief, filed on April 30, 2013.
     The Petition for Special Relief sought enforcement of certain
     provisions of the parties’ PSA. The specific provisions at issue
     are contained in Paragraph 5, which provides for disposition of
     the marital residence located in Whitehall Township, Lehigh
     County, Pennsylvania. After affirming in the prefatory language
     of Paragraph 5 that the parties acknowledged full and complete
     disclosure of their respective financial assets, Paragraph 5 reads
     as follows:

        With respect to said marital property, the parties agree as
        follows:

        A. Marital Residence.

           1) Wife shall refinance the existing mortgage on the
              martial [sic] residence located at 5007 Foxdale
              Drive, Whitehall Township, Lehigh County, PA, no
              later than one (1) year after the date of signing this
              agreement. Should Wife not refinance the martial
              [sic] residence within said one (1) year period,
              martial [sic] residence shall be sold and proceeds
              shall be divided as designated on attached Exhibit
              “A”.

           2) Upon refinancing, Husband and Wife agree to divide
              the proceeds as designated on attached Exhibit
              “A” . . . .

     Exhibit A provides:

        Items to be paid out of the proceeds of the refinancing of
        the martial [sic] property[.]     Figures are approximate
        value as of the drafting of this agreement and final value
        to be determined at the time of final settlement.



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                      Husband        Wife          to be paid off

       Mortgage       (29,235.00)    (29, 235.00) 58,470.00

       Home equity                   (52,931.55)   52,931.55

       [Bank of America]             (6,764.31)    6,764,31

       Discover                      (7,730.86)    7,730.86

     [Husband’s] Petition for Special Relief sought enforcement of
     Paragraph 5A’s language requiring [Wife] to sell the home
     because she has not been able to refinance the mortgage on the
     marital residence within one year of signing of the PSA, and to
     subsequently distribute one-half of the net proceeds from the
     sale of the house to [Husband] after retirement of the mortgage
     debt.

     On December 31, 2013, the [trial court] entered an order
     granting [Husband’s] motion in part. In that order, the [trial
     court] enforced the PSA to require an even and equal distribution
     of the net proceeds from the sale of the marital home after
     payment of the mortgage debt.

     On January 28, 2014, [Wife] filed a Notice of Appeal from the
     December 31, 2013 order. The case was docketed at 436 EDA
     2014. [Wife] filed a Concise Statement pursuant to Pa.R.A.P.
     1925(b) on February 12, 2014. [The trial court] issued its
     1925(a) Opinion on March 4, 2014. In that opinion, the [trial
     court] noted that it believed the appeal was improper and was
     premature pursuant to Fried v. Fried, 501 A.2d 211 (Pa. 1985).

     On March 6, 2014, the Superior Court entered an order quashing
     the appeal because no divorce decree was entered yet, thereby
     rendering the appeal interlocutory consistent with [the trial
     court’s] observation in its opinion.

     On March 25, 2014, [Husband] filed an Amended Complaint in
     Divorce. On March 31, 2014, [Wife] filed a petition seeking
     [entry of] the divorce decree.

     Prior to the entry of the divorce decree, on April 8, 2014, the
     [trial court] heard [Husband’s] oral motion for a protective
     order. Because the marital residence was a matter for equitable
     distribution and equitable distribution was subject to an appeal,


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      [Husband] sought an order precluding [Wife] from allowing the
      marital residence to fall into disrepair.     [Wife] is currently
      residing in the marital residence. Because it may be subject to a
      sale in the event [Wife] failed to comply with the refinancing
      requirements of the PSA, [on April 24, 2014,] the [trial court]
      ordered that she maintain the property to prevent it from falling
      into disrepair.

      The divorce decree was entered on April 30, 2014. Following the
      entry of the divorce decree, [Wife] filed a new Notice of Appeal
      on May 9, 2014.

Trial Court Opinion (“T.C.O.”), 8/1/2014, at 1-4.        On August 1, 2014, the

trial court then filed its second Rule 1925(a) opinion.

      Wife raises the following issues for our review:

      A. Whether the trial court impermissibly re-crafted the parties’
         [PSA] which the trial court found was fraudulently prepared
         and that the parol evidence introduced, over the objection of
         both parties, was not helpful in clarifying the intent of the
         parties or the language of the agreement?

      B. Whether the trial court erred and misapplied the law in failing
         to consider the entire [PSA] and arriving at its decision of
         December 31, 2013?

      C. Whether the trial court erred by ordering Husband to continue
         to make the mortgage payments in lieu of child support which
         is tantamount to returning, in part, the child support paid by
         Husband?

      D. Whether the trial court erred in entering the order of April
         [24], 2014, and inserting terms into the [PSA] which were not
         contained therein, specifically, imposing upon Wife an
         obligation to be solely responsible for “any and all costs of
         repair, upkeep or maintenance on the marital residence
         throughout the timeframe consistent with this Order[”]?

Wife’s Brief at 6.

      Our standard of review is well settled:



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     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.” Chen v. Chen, 840 A.2d 355, 360 (Pa. Super. 2003),
     appeal granted in part, 578 Pa. 433, 853 A.2d 1011 (2004). 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.

        “[J]udicial discretion” requires action in conformity with
        law on facts and circumstances before the trial court after
        hearing and due consideration. Such discretion is not
        absolute, but must constitute the exercises of sound
        discretion. This is especially so where, as here, there is
        law to apply.     On appeal, a trial court’s decision will
        generally not be reversed unless there appears to have
        been an abuse of discretion or a fundamental error in
        applying correct principles of law. An “abuse of discretion”
        or failure to exercise sound discretion is not merely an
        error of judgment. But if, in reaching a conclusion, law is
        overridden or misapplied, or the judgment exercised is
        manifestly unreasonable or lacking in reason, discretion
        must be held to have been abused.

     In re Deed of Trust of Rose Hill Cemetery Ass'n Dated Jan.
     14, 1960, 527 Pa. 211, 216, 590 A.2d 1, 3 (1991) (internal
     citations omitted). “Because contract interpretation is a question
     of law, this Court is not bound by the trial court’s interpretation.”
     Chen, supra at 360. “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.” Kripp v. Kripp, 578 Pa. 82, 91
     n.5, 849 A.2d 1159, 1164 n.5 (2004). However, we are bound
     by the trial court’s credibility determinations. Wade v. Huston,
     877 A.2d 464 (Pa. Super. 2005).

Stamerro v. Stamerro, 889 A.2d 1251, 1257-58 (Pa. Super. 2005)

(footnote and some internal citations omitted).

     We also note that:

     In Pennsylvania, we enforce property settlement agreements
     between husband and wife in accordance with the same rules


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     applying to contract interpretation. A court may construe or
     interpret a consent decree as it would a contract, but it has
     neither the power nor the authority to modify or vary the decree
     unless there has been fraud, accident or mistake. . . .

     It is well-established that the paramount goal of contract
     interpretation is to ascertain and give effect to the parties’
     intent. When the trier of fact has determined the intent of the
     parties to a contract, an appellate court will defer to that
     determination if it is supported by the evidence.

     When construing agreements involving clear and unambiguous
     terms, this Court need only examine the writing itself to give
     effect to the parties[’] understanding. The court must construe
     the contract only as written and may not modify the plain
     meaning of the words under the guise of interpretation. When
     the terms of a written contract are clear, this Court will not
     rewrite it or give it a construction in conflict with the accepted
     and plain meaning of the language used. Conversely, when the
     language is ambiguous and the intentions of the parties cannot
     be reasonably ascertained from the language of the writing
     alone, the parol evidence rule does not apply to the admission of
     oral testimony to show both the intent of the parties and the
     circumstances attending the execution of the contract.

     A contract is ambiguous if it is reasonably susceptible of different
     constructions and capable of being understood in more than one
     sense. The court must determine as a question of law whether
     the contract terms are clear or ambiguous. When acting as the
     trier of fact, the court also resolves relevant conflicting parol
     evidence as to what was intended by the ambiguous provisions,
     examining surrounding circumstances to ascertain the intent of
     the parities.

Lang v. Meske, 850 A.2d 737, 739-40 (Pa. Super. 2004) (quoting Osial v.

Cook, 803 A.2d 209, 213-14 (Pa. Super. 2002)) (citations omitted).

     In her first issue, Wife argues that the PSA was unambiguous, but the

trial court nonetheless revised the parties’ PSA to provide Husband with a

share of the proceeds of the marital residence. Wife contends that the trial

court failed to consider the drafter’s fraud in construing the PSA, and Wife

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J-A33039-14



asserts that she raised the issue of fraud in her Answer and Counterclaim.

Wife’s Brief at 12-18. Wife also argues that the trial court failed to consider

the PSA as a whole, and particularly Wife’s waiver of alimony and her

interest in Husband’s retirement benefits.       Wife claims that waiver of

alimony was in consideration for Wife receiving the proceeds of the marital

residence. Wife’s Brief at 19-20.

      Husband responds that the trial court did not find the PSA to be

fraudulent, but found only that the drafter provided fraudulent services after

the PSA was signed and completed. Husband contends that the trial court

properly found the language of the PSA to be ambiguous, then took

testimony and resolved the conflict in the testimony to determine the

parties’ intent. Husband’s Brief at 11-15.

      We first address whether the trial court correctly concluded that the

PSA was ambiguous, and then we review the court’s interpretation of the

PSA. The trial court acknowledged that neither party believed the PSA to be

ambiguous,     despite     each   party    providing   diametrically   opposed

interpretations of the PSA. Trial Court Memorandum and Order (“T.C.M.”),

12/31/2013, at 4.        However, the trial court found the language to be

“imprecise” and permitted the parties to present testimony regarding the

parties’ intent. Id.

      Initially, we agree with the trial court that the PSA is ambiguous. A

contract is ambiguous when it can be understood in more than one way.

Lang, supra. The PSA provides that Wife shall refinance the property within

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J-A33039-14



one year and if she does not do so, the marital residence will be sold.

Property Settlement Agreement (“PSA”), 10/31/2011, at 4-5.            Whether

refinanced or sold, the PSA directs that the proceeds are to be divided “as

designated on attached Exhibit ‘A.’” Id. at 5. Exhibit A lists “[i]tems to be

paid out of the proceeds of the refinancing of the marital property” and then

lists two columns of debts, with the mortgage split between the columns of

Husband and Wife and the home equity line of credit and two credit cards

listed in Wife’s column. Id. at 15. Taken together, this could mean that the

money received from the house will be divided between Husband and Wife

with each individually responsible for the debts listed in their respective

columns and keeping however much was left. It also could mean that the

parties will pay the debts and then divide the proceeds after the debts were

paid.    Because Exhibit A does not indicate how to distribute any money

remaining after the debts are paid, it does not speak clearly to those

remaining proceeds.1 Thus, the trial court properly concluded that the PSA

was ambiguous and took testimony relative to the parties’ intent.

        Next, we address the trial court’s interpretation of the PSA. The court

considered the following evidence:


____________________________________________


1
      The trial court found the PSA ambiguous because it believed that the
PSA was “reasonably susceptible to” either Husband’s assertion that the PSA
called for equal division of the net proceeds or to Wife’s contention that the
PSA called for Wife to retain the marital residence mortgage-free and
without any allocation to Husband. T.C.O. at 7.



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J-A33039-14


     [Husband] testified the parties separated in January 2011 after
     he learned [that Wife] ran up credit card bills under his name
     without his permission or knowledge. In approximately May of
     2011, [Husband] asked [Wife] how much was in their joint
     savings account and how much was owed on the home equity
     loan as well as for their daughter’s braces payments. [Wife] told
     [Husband] they had about $20,000 in savings. She estimated
     about $5,000 was owed on the home equity loan and about
     $1,000 for the braces. [Husband] suggested using the funds
     from the savings account to pay off those two debts and to
     evenly split the remaining sum from the savings account. When
     these bills remained unpaid, [Husband] pulled his credit report
     and found out [Wife] had increased the amount of the home
     equity loan to $70,000, had settled a credit card debt for less
     than was owed, and that two other credit cards were used
     excessively.

                                 *    *    *

     According to [Husband], the parties took out a home equity loan
     solely for the purpose of purchasing a new vehicle for [Wife’s]
     use. This home equity loan was in the amount of $31,000.
     After learning of the huge increase in credit card bills, [Husband]
     also discovered the home equity loan had not been reduced from
     the original $31,000 taken out and paid down over the ensuing
     months, but instead had been increased to $70,000. [Husband]
     claimed he did not know about the increase in the home equity
     loan or the amount of credit card debt incurred by [Wife].

     The property settlement agreement was purportedly reached
     after a series of proposals exchanged by the parties. In [a July
     13, 2011 email (Exhibit P-1), Husband] made his first proposal.
     [Husband] suggested he should retain the marital residence and
     live there with the parties’ two children while [Wife] moved
     out. . . . [Wife] did not respond to this offer.

     According to [Husband, Wife] responded to [Husband’s] second
     offer for settlement of the marital estate with her own proposal
     that she would remain in the marital home with the children,
     refinance the mortgage on the house, and buy out [Husband’s]
     share of the equity. [Husband] had refined his original proposal
     in a handwritten note to Daniele Holland, introduced at trial as
     Exhibit P-3. In this offer, which was subsequently conveyed to
     [Wife] by way of an e-mail from Daniele Holland to [Wife] on
     July 22, 2011, [Wife] would buy out [Husband’s] interest in the


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     marital home. As the language of P-3 indicates, [Wife] would
     have one year to refinance the mortgage, and [Husband] would
     continue to pay the mortgage until the refinancing was
     completed. The parties further negotiated that [Husband] would
     continue to pay the monthly mortgage amount on the house
     instead of paying child support. The arrangement was that when
     the oldest child turned 18 and graduated from high school,
     [Husband’s] monthly mortgage obligation would be cut in half.

     [Husband] further testified he used the services of his sister-in-
     law Daniele Holland as a conduit for negotiations with [Wife].
     Daniele Holland was employed as a legal assistant with a law
     firm in Easton, Pennsylvania, and drew up various property
     settlement proposals after communicating and transmitting
     offers and counteroffers between the parties. In drafting the
     final language for the property settlement agreement, Daniele
     Holland worked from a template of property settlement
     agreements used in the law office where she worked. Based on
     the negotiations of the parties, [Wife] agreed to assume a
     disproportionate amount of the marital debt.       According to
     [Husband, Wife] agreed to assume this much of the debt to
     “right her wrongs.” As a result, under the terms of Exhibit A
     referenced above, [Wife] agreed to be responsible for one-half of
     the remaining mortgage debt, and to assume full responsibility
     for the balance owed on the home equity loan and the two credit
     cards (Bank of America and Discover).

                                 *     *      *

     Exhibit P-2 is an important element of consideration by the [trial
     court] in the current dispute. The e-mail exchange seems to
     dictate the terms of the agreement between the parties, later
     found word for word in Exhibit P-5[, a draft of the PSA], as well
     as the parties’ own acknowledging comments. . . . Exhibit P-2
     then appears to include [Wife’s] acceptance of the proposed
     distribution of assets from disposition of the marital residence
     and assumption of debts by the parties.

                                 *     *      *

     When asked the purpose of the home equity loan, [Wife]
     testified the funds obtained through the home equity loan were
     used to pay for a motor vehicle as well as family vacations,
     personal item purchases and credit card payments.        [Wife]
     testified [that Husband] was completely aware of the total


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J-A33039-14


      amount of the home equity loan and the amounts incurred from
      credit card spending.

      [Wife] testified she agreed to pay off a disproportionate amount
      of the martial debts because, “it would make [Husband] happy.”
      She further testified that her understanding of the terms of the
      [PSA] was that if she was paying off the debts, this allowed her
      to get the house if she waived any claim to alimony and
      [Husband’s] pension benefits. . . . [Wife] asserted she did not
      understand the [PSA] required her to relinquish half the net
      value to [Husband] but instead, she “would be receiving the
      house.” [Wife] stated she never heard of the proposition that
      [Husband] would receive one-half of the proceeds from the sale
      of the house after payment of debts until the litigation began.

                                  *     *      *

      [The trial court] does not find Daniele Holland a credible witness
      at any level. . . . In addition, the [trial court] does not find
      either party particularly persuasive in their own testimony.
      [Husband] was surprisingly vague and hesitant when testifying
      about the circumstances leading to his initial proposal,
      counterproposal, and eventual agreement to the language in the
      property settlement. [Wife] was unbelievable in her assertion
      she could not recall the events leading up to a second home
      equity loan application which nearly doubled the amount of the
      home equity debt encumbering the marital residence.

T.C.M. at 4-6, 8, 12-13, 15-16 (citations to notes of testimony omitted).

      After considering the evidence, the trial court concluded that Wife had

entered an agreement to assume the majority of the debt and that Husband

was to receive half of the proceeds of the marital residence. Id. at 17. The

court provided Wife six months during which she could refinance the

mortgage and provide Husband with his share of the equity. If the house

could not be refinanced, it was to be listed for sale with the proceeds of sale

to be split between the parties. The trial court stated:




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      The PSA is entirely silent on the timing of the distribution of the
      proceeds.   In other words, within the four corners of the
      agreement, there is no indication whether the proceeds should
      be divided before or after paying off the expenses denoted in
      Exhibit A. However, the [trial court] found that the notion of
      “proceeds” bears only one logical meaning.

      [Husband] testified that the essential goal of the parties’ PSA
      with respect to [Wife] assuming a disproportionate amount of
      debt was for [Wife] to “right her wrongs.” This is corroborated
      by Exhibit A, by which [Wife] agrees to assume one half of the
      mortgage as well as the credit card bills for the couple’s Bank of
      American and Discover cards and the home equity loan.

      If the marital residence is sold, after expenses attendant to the
      sale, there remains a corpus of funds. The [trial court]
      interpreted the PSA as dividing that corpus evenly.          Each
      individual would receive fifty percent of the funds after the sale
      from which the parties would pay their respective debts under
      Exhibit A. This is the only way by which [Wife] can properly
      retire the share of the mutual debt that she agreed to assume.
      [Wife] argues that the agreement required the debts to be paid
      from the purchase amount before distribution of funds to the
      parties from the sale. Such an interpretation is inconsistent with
      the parties’ purpose and intent as described in Exhibit A to
      assign the payment of certain liabilities to one party or the
      other. [Wife’s] interpretation would serve to contradict and
      frustrate the purpose of the PSA.

T.C.O. at 11 (citations to record omitted; emphasis in original).

      Based upon the record before us, we agree with the trial court. The

interpretation most consistent with the parties’ memorialized discussions is

that Wife intended to assume a larger share of the debt because she

incurred most of it, and Husband would receive his equal share of the equity

in the marital residence.

      Wife also contends that Daniele Holland’s fraud should invalidate the

agreement.    The trial court acknowledged that Ms. Holland was not a


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credible witness.       She testified that she prepared the PSA under the

supervision of her employer, an attorney. However, that attorney testified

that he never met with Husband and had never opened a file related to this

case.    The attorney and his office manager also testified regarding other

misconduct by Ms. Holland that was unrelated to this case. T.C.M. at 10-11.

        While there is no doubt that Ms. Holland acted wrongfully, the trial

court did not, as Wife suggests, find that Ms. Holland defrauded Wife.2

Additionally, Wife does not argue that the PSA does not represent the

parties’ agreement. She argues that the trial court either misinterpreted the

PSA or added conditions to it that were not found in the PSA itself.

Regardless, the trial court did consider Ms. Holland’s actions, and gave Wife

six additional months to attempt to refinance the house partly as a result of

to those actions.      T.C.M. at 18; T.C.O. at 9.   We find no merit in Wife’s

argument.

        With regard to Wife’s argument that the court failed to consider her

waiver of alimony in interpreting the PSA, the trial court heard evidence

regarding the negotiations of the PSA and reasonably determined the




____________________________________________


2
      Wife’s citation in support of this claim is misplaced. The trial court
believed Daniele Holland may have committed perjury in connection with an
allegation that she forged a judge’s signature in a different case and ordered
that the hearing transcripts be forward to the district attorney for
investigation. T.C.M. at 15 n.2.



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parties’ intent. The record supports the court’s determinations and we find

no error.

      In her next issue, Wife asserts that the trial court erred in permitting

Husband to pay the mortgage on the marital residence in lieu of child

support.    Wife claims that the trial court erred in concluding that Wife

benefited more from the mortgage payments than she would have from child

support because the trial court did not have sufficient evidence to make such

a conclusion. Wife’s Brief at 21-22.

      Husband responds that the parties agreed that Husband would make

the mortgage payments in lieu of child support until Wife refinanced the

marital residence. After refinancing, Husband would pay the amount directly

to Wife until the older child was emancipated, at which time, the parties

agreed that Husband’s payment to Wife would be halved. Husband contends

that this did not bargain away the children’s right to child support, but

merely specified the method of payment. Husband’s Brief at 20-21.

      To the extent that Wife argues that the court did not adequately

consider the child support provision as part of the PSA as a whole, as noted

above, we find no error in the trial court’s resolution of the interpretation of

the marital residence clause of the PSA. However, to the extent that Wife

argues the trial court should have modified the child support agreement, we

provide the following discussion.

      With regard to the validity of support agreements, we have stated:




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      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.

Kraisinger v. Kraisinger, 928 A.2d 333, 340-41 (Pa. Super. 2007)

(quoting Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991)) (modifications in

original).

      The trial court implicitly may have found the child support agreement

to be fair.   T.C.M. at 18.   However, the trial court did not consider the

parties’ incomes or the applicable guideline support obligation as required by

Kraisinger. Unfortunately, Wife did not raise the issue of a modification of

child support properly. To seek a modification of child support, one must file

a petition for modification that “specifically aver[s] the material and

substantial change in circumstances upon which the petition is based.”

Pa.R.C.P. 1910.19(a). The record does not demonstrate that Wife ever filed

a petition for modification or a complaint for child support.      While Wife

claims that she raised the issue in her counterclaim to Husband’s petition for

special relief, that counterclaim only addressed alimony and retirement

benefits, not the issue of child support. In our review of the transcript, Wife

never raised child support, except that, in closing arguments, Wife’s attorney

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asks the court to consider the mortgage payments in lieu of child support in

its interpretation of the PSA. Notes of Testimony (“N.T.”), 9/19/2013, at 85-

86.   Because Wife never requested relief or filed for a modification of the

child support indicated in the PSA, the court could not have erred in failing

to address that issue.3

       Finally, Wife asserts that the trial court erred in entering its April 24,

2014 order which restrained Wife from selling the marital residence during

the pendency of the appeal and directed Wife to maintain the residence.

Wife argues that the requirements that she be responsible for the

maintenance, upkeep, and repair of the marital residence are conditions that

do not appear in the PSA.           Wife contends that the trial court erred by

imposing conditions to which the parties did not agree. Wife’s Brief at 23-

24. Husband responds that the order merely stated the standard practice

that the person in the residence is responsible for it. Husband’s Brief at 22.

       On April 8, 2014, the parties appeared before the trial court to request

the divorce decree. At that time, Husband, appearing pro se, made an oral

request for an order that Wife not sell or transfer the marital residence and

continue to maintain it pending the resolution of any appeal.              N.T.,

4/8/2014, at 6.      Wife’s attorney represented that she had no objection to



____________________________________________


3
       Notwithstanding our ruling, we intend no prejudice to Wife’s right to
file a petition to modify support in the future.



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such an order. Id. at 7. On April 24, 2014, the trial court entered the order

that Wife:

     is prohibited from transferring or encumbering with any further
     debt obligation the marital home . . . without [Husband’s]
     consent. Furthermore, [Wife] is prohibited from damaging or
     allowing the marital home to deteriorate or fall into disrepair
     during the pendency of any litigation or appeal in the within
     matter. [Wife] is responsible for any of the costs for repair,
     upkeep, or maintenance on the marital home throughout that
     timeframe consistent with this Order.

Order, 4/24//2014, at 1.

     The trial court explained its decision as follows:

     [Husband’s] request, in essence, was that while [Wife] continues
     living in the marital residence during the pendency of the appeal
     and refinancing procedures, and while [Husband] has
     responsibility to pay the mortgage expenses, [Wife] should be
     precluded from allowing the market value of the home to drop
     by not performing basic maintenance on the property.

                                  *     *      *

     In this case, the [trial court] took the parties’ respective
     interests into consideration and entered an order it deemed
     appropriate to maintain the status quo during the pendency of
     any appeal. While [Wife] is residing in the marital residence, if
     she were to allow the home to fall into a state of disrepair, it
     would adversely impact the value at such a time as the
     residence must be sold. Such a result would cause an economic
     inequity upon both parties, not just [Husband].           The [trial
     court’s] Order of April [24], 2014 served to maintain the status
     quo.    Because [Wife] is residing therein, responsibility was
     placed upon her to bear any costs attendant to problems that
     may arise with the residence. This does not preclude her from
     filing any subsequent petition for special relief in the event
     something major were to occur with the property which falls
     outside her control and for which [Husband] should bear some
     financial responsibility. Instead, the responsibilities placed upon
     [Wife] by [the trial court’s] order are consistent with those


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      responsibilities assumed by any homeowner – to maintain the
      premises.

T.C.O. at 15.

      As noted, Wife did not object to Husband’s oral motion or the court’s

statement that it would enter an order granting Husband’s request.         N.T.,

4/8/2014, at 7. The failure to object to an alleged error waives that issue

for purposes of appeal. See Pa.R.A.P. 302(a); Commonwealth v. Helsel,

53 A.3d 906, 919 n.11 (Pa. Super. 2012). However, one issue was included

in the order that was not raised in open court: that Wife be responsible for

the costs of upkeep. Because Wife had no opportunity to object, we do not

find this particular issue waived. However, given that Husband was making

the mortgage payments and Wife was living in the marital residence, we

agree with the trial court that it was equitable for Wife to handle the upkeep,

especially as Wife could petition the court for relief should unanticipated

expenses arise. Support for such a position can be found in the fair rental

value offsets of marital property when the non-possessing spouse may

receive credit for fair rental value due to his or her ownership interest in the

marital residence, but such rental value may be offset by the non-possessing

spouse’s share of the expenses for upkeep and debt service.        See Lee v.

Lee, 978 A.2d 380, 385-86 (Pa. Super. 2009). Here, the trial court similarly

balanced the financial responsibility for the marital residence between

Husband and Wife and we find no error.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2015




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