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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ROSE ANN PORTERFIELD                     :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
ERIC JON PORTERFIELD,                    :         No. 553 MDA 2016
                                         :
                        Appellant        :


                Appeal from the Order Entered March 7, 2016,
               in the Court of Common Pleas of Centre County
                         Civil Division at No. 05-0185


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 17, 2017

      Eric Jon Porterfield (“Father”) appeals the March 7, 2016 order of the

Court of Common Pleas of Centre County that granted Rose Ann Porterfield’s

(“Mother”) petition to recover tuition and expenses and entered judgment in

favor of Mother and against Father in the amount of $51,965.58 which

represented 55% of the tuition and college expenses paid for the parties’

two older children.1 The trial court also entered judgment of $55,000 as an

initial contribution toward additional tuition and expenses anticipated for the

second child to attend college plus $55,000 as an initial contribution toward




* Former Justice specially assigned to the Superior Court.
1
 This amount consisted of $15,161.49 for the oldest child’s tuition,
$29,710.23 for the oldest child’s expenses, $38,203.00 for the second child’s
tuition, and $11,408.15 for the second child’s expenses.
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the tuition and expenses anticipated by the third child to attend college. 2

The order also specified that all of the terms of the Divorce Decree and

Agreement between Rose Ann F. Porterfield and Eric J. Porterfield,

February 19, 2008 (“Agreement”) shall remain in full force and effect.

      Father and Mother were married on October 7, 1989. The parties had

three children while married. Mother filed for divorce on January 18, 2005.

The parties acknowledged that the marriage was irretrievably broken, and

both issued affidavits of consent.

      On February 19, 2008, the parties requested to incorporate the

Agreement into the final divorce decree.      The Agreement distributed the

marital property and established Father’s child support obligation.      Section

4.3 of the Agreement addressed the educational expenses of the parties’

children and provided:

                   [Mother] shall pay 45 percent and [Father]
            shall pay 55 percent of the private school and college
            expenses of the children that are not covered by
            funds owned by the children or held on their behalf,
            scholarships, awards and grants. The parties shall
            make the payments required by this paragraph on or
            before the date that the payment is due. Such
            expenses are defined as all expenses billed by the
            institution or service providers to the institutions
            including without limitation, tuition, room and board,
            cafeteria fees, books and bookstore fees, laboratory
            fees, and activity fees. Neither party shall incur debt
            that one of their children would be obligated to pay
            as a means of funding the obligation by this
            paragraph.

2
  The third child was in tenth grade at the time the trial court issued the
order.


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Agreement, Section 4.3 at 16.

      By order dated February 19, 2008, the trial court approved the

Agreement and entered it as an order of court in adjudication of claims

related to the divorce action.   The trial court incorporated the Agreement

into the divorce decree.

      On June 9, 2015, Mother petitioned for contempt and enforcement and

asserted that Father had violated Section 4.3 of the Agreement:

            8.    [Mother] has paid tuition costs for the parties’
                  [oldest child] totaling more than $30,000.

            9.    [Mother] has also paid for room and board,
                  text books, insurance, utilities, parking and
                  other necessities for [the oldest child].

            10.   [Mother] has paid tuition costs for the parties’
                  [second    child],   totaling    approximately
                  $30,000.

            11.   [Mother] has also paid additional costs
                  associated with overseas studies, text books,
                  and other necessities for the parties’ [second
                  child].

            12.   Despite the request for reimbursement from
                  [Father], [Father] has refused to reimburse
                  [Mother] or otherwise pay his 55% share of
                  tuition and other costs.

            13.   [Mother] has paid and continues to pay for
                  computers, text books and related college
                  expenses on behalf of the children.

            14.   The parties’ third child . . . is expected to enter
                  college in approximately two (2) years. It is
                  estimated that college tuition for [the third



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                   child’s] post-secondary education may amount
                   to $100,000.

             15.   [Father] has refused [Mother’s] request to
                   save, invest or otherwise provide $55,000 to
                   [Mother as an initial contribution to [the third
                   child’s] college tuition.

             16.   [Father] is in contempt of Section 4.3 of the
                   parties’ Agreement for his failure to make
                   payments toward the tuition and other college
                   expenses of the children which are not
                   otherwise covered by funds owned by the
                   children    or    held   on   their   behalf,
                   e.g. scholarships, awards and grants, on or
                   before the payment is due.

             17.   [Father] has willfully disobeyed the Court’s
                   February 19, 2008 Decree in Divorce by
                   refusing to comply with the Agreement of the
                   parties.

Petition for contempt and enforcement, 6/9/15 at 2-3, ¶¶ 8-17.         Mother

sought a determination that Father was in contempt, reimbursement for

55% of the college expenses of the older two children which Mother had

already paid, and payment of $55,000 as an initial contribution toward the

tuition and expenses anticipated for the third child to attend college. Mother

also sought attorney’s fees, costs, and expenses.

        Following a hearing and the submission of briefs, the trial court

granted the petition with respect to the amounts owed by Father to Mother

for tuition and denied the petition with respect to the request for attorney’s

fees.   In addition to paying for expenses already incurred, the trial court

entered judgment against Father in the amount of $55,000 for estimated



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future educational and related expenses for the second child and $55,000 for

future expenses for the third child.       Father then timely appealed to this

court.

         Father presents the following issues for this court’s review:

               1.    Whether the trial court abused its discretion
                     and committed an error of law when it imposed
                     a prospective obligation to make payments
                     toward future college tuition and expenses
                     before such expenses are incurred?

               2.    Whether the trial court abused its discretion
                     and committed an error of law when it imposed
                     an obligation to make payment toward
                     unsubstantiated educational expenses?

Father’s brief at 5.

                      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, 853 A.2d 1011 (Pa. 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. Tuthill v. Tuthill, 763 A.2d 417, 419
               (Pa.Super. 2000) (en banc), appeal denied, 775
               A.2d 808 (Pa. 2001).

                     “[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    exercise  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


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                 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, 590 A.2d 1, 3 (Pa. 1991)
           (internal citations omitted).   See also Miller v.
           Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.
           2000).      “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, 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). (Footnote omitted.)

Stamerro v. Stamerro, 889 A.2d 1251, 1257-1258 (Pa.Super. 2005).

     A reviewing court is permitted only to construe the contract as it is

written and may not modify the plain meaning of the contract. Mazurek v.

Russell, 96 A.3d 372, 378 (Pa.Super. 2014).

     Initially, Father contends that the trial court improperly ordered him to

prepay for college tuition and expenses for the second and third children.

Both parties agree that the law of contracts governs a property settlement

agreement if the agreement is not merged into the divorce decree. If such



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an agreement is incorporated, but not merged, into the divorce decree, it

survives the entry of the divorce decree and is then governed by contract

law. Nessa v. Nessa, 581 A.2d 674, 676 (Pa.Super. 1990). The intention

of the parties determines whether an agreement has merged with a divorce

decree.   Peck v. Peck, 707 A.2d 1163, 1165 (Pa.Super. 1998).              In

ascertaining the intent of the parties, a court looks to the plain language of

the agreement itself. Id.

      Here, a review of the record reveals that Section 1.3 of the Agreement

specifically provides “[t]his Agreement shall be incorporated into, but not

merged with, any divorce decree that may be entered.”             (Agreement,

Section 1.3 at 2.) The trial court incorporated the Agreement as part of the

divorce decree by order dated February 19, 2008. (Order, 2/19/08 at 1.) A

provision in a valid incorporated but not merged agreement is not subject to

modification by the trial court. See 23 Pa.C.S.A. § 3105(c); McMahon v.

McMahon, 612 A.2d 1360 (Pa.Super. 1992).

      Here, Section 4.3 of the Agreement provides that Father shall pay

55% of the private school and college expenses for the three children that

are not covered by funds owned by the children or held on their behalf,

scholarships, awards, and grants. Section 4.3 further provides:

            [t]he parties shall make the payments required by
            this paragraph on or before the date that the
            payment is due. Such expenses are defined as
            all expenses billed by the institution or service
            providers to the institutions including without
            limitation, tuition, room and board, cafeteria


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            fees, books and bookstore fees, laboratory
            fees, and activity fees.

Agreement, Section 4.3 at 16 (emphasis added).

      The trial court ordered Father to pay $55,000 for the future college

expenses of each of the two younger children. At the time, the second child

had two and one-half years of college remaining.        The third child was in

tenth grade.    The Agreement contains no provision for prepayment of

tuition.   It only states that Father and Mother shall make the required

payments on or before the date that the payment is due. In the case of the

third child who was in tenth grade at the time, it is not clear whether he will

actually attend college. Similarly, according to the record, there are not bills

currently due for the second child for tuition and expenses that will be

incurred in the future.    Based on the plain language of the Agreement,

Father has no obligation to prepay educational expenses that have not been

incurred and may not be incurred. Although the trial court was attempting

to avoid the situation of Father not paying the expenses as they came due,

as had happened before, the trial court lacked the authority to do so based

on the language of the Agreement.

      Father next contends that the trial court abused its discretion and

committed an error of law when it imposed an obligation to make payment

toward unsubstantiated educational expenses.         Father argues that even

though Mother provided a list of expenses incurred for the two older children

while they were in college, no effort was made to differentiate between


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general expenses and bona fide educational expenses.           Father concedes

that the information may be in Mother’s exhibits but argues that the trial

court made no effort to determine whether these claimed expenses were for

actual education expenses.

      The trial court did not address this issue in its opinion issued pursuant

to Pa.R.A.P. 1925(a) because Father did not raise it in his concise statement

of   errors   complained   of   on   appeal,   which   he   filed   pursuant   to

Pa.R.A.P. 1925(b).   In his statement, Father poses the following question:

“2. Whether the trial court abused its discretion and committed an error of

law when it imposed a prospective obligation to make payment toward

unsubstantiated school expenses?” (Concise statement of errors complained

of on appeal, 4/20/16 at 1-2 (emphasis added).) This issue referred to the

prospective assessment for expenses that had not yet occurred, rather than

the legitimacy of alleged expenses already incurred. Issues not raised in a

Rule 1925 concise statement of errors will be deemed waived.           Linde v.

Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa.Super. 2015), appeal

denied, 129 A.3d 1243 (Pa. 2015). An appellate court may raise waiver

under Rule 1925(b) sua sponte.        Commonwealth v. Hill, 16 A.3d 484,

494 (Pa. 2011).

      Order affirmed in part and reversed in part. The portion of the order

entering judgment in the amount of $51,965.58 is affirmed. The portion of




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the order entering judgment in the amounts of $55,000 for future college

expenses for both of the two younger children is reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2017




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