J-A14042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JILL WEIDLE TAYLOR CHERKAS,                     IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID L. CHERKAS,

                            Appellant                No. 2249 EDA 2016


               Appeal from the Order Entered June 14, 2016
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2013-08885


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.;                          FILED AUGUST 25, 2017

      Appellant-Defendant, David L. Cherkas (“Husband”) appeals from the

June 14, 2016 order of the Montgomery County Court of Common Pleas. We

affirm.

      The trial court summarized the facts and relevant procedural history of

the case as follows:

            The parties in this matter were married in 2005, and
      separated in 2011. They have one [daughter], . . . referred to in
      this opinion as M.C.[] On March 22, 2011, the parties entered
      into a property settlement agreement [(“PSA”)]. On June 24,
      2013, the parties entered into a supplemental property
      settlement agreement [(“SPSA”)]. On September [10], 2013,
      the court issued a divorce decree in this matter which
      incorporated by reference both the March 22, 2011 [PSA], and
      the June 24, 2013 [SPSA].

             On April 10, 2015, Plaintiff/Appellee (hereinafter “[Wife]”)
      filed a Motion to Enforce Marital Settlement Agreement wherein,
      inter alia, [Wife] alleged that [Husband] failed to make required
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      support payments pursuant to paragraph 3 of the June 24, 2013
      [SPSA]. On May 1, 2015, [Husband] filed an Answer and New
      Matter to Motion to Enforce Marital Settlement Agreement
      wherein, inter alia, [Husband] requested the court [to] modify
      the monthly support provision of the March 22, 2011 [PSA].

            On November 6, 2015, the court held the first of two
      hearings on [Wife’s] Motion and [Husband’s] Answer and New
      Matter.

Trial Court Opinion, 10/6/16, at 1–2. The court held a second hearing on

May 4, 2016. On June 14, 2016, the trial court granted Wife’s motion and

directed that Husband shall continue to pay monthly unallocated support of

$3,000. The trial court also granted Husband’s motion in part and concluded

that while the PSA does permit a downward modification of Husband’s

support obligation, a downward modification was not warranted.         Order,

6/14/16, at 1–2.

      On July 12, 2016, Husband filed a notice of appeal from the June 14,

2016 order. Both Husband and the trial court complied with Pa.R.A.P. 1925.

Wife has not filed a brief and did not participate in oral argument.

      Husband presents the following issues on appeal:

       I.   Did the Trial Court abuse its discretion in considering the
            Pennsylvania Support Guidelines to determine Husband’s
            support obligation above the amount of his child support
            obligation when the parties are already divorced and
            alimony pendente lite is not applicable?

      II.   Did the Trial Court abuse its discretion when it failed to
            find that Husband was entitled to a downward support
            modification where the Agreement explicitly provides that
            there will be a downward modification of his support
            obligation if, among other things, Husband’s income
            decreased below $500,000 a year?

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      III.   Did the Trial Court err in finding that Wife is not required
             to demonstrate “need” to continue receiving her share of
             the $3,000.00 unallocated monthly support amount?

Husband’s Brief at 6 (verbatim). We address issues I and II together.

      “It is well-established that the law of contracts governs marital

settlement agreements.”     Vaccarello v. Vaccarello, 757 A.2d 909, 914

(Pa. 2000) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004));

Stamerro v. Stamerro, 889 A.2d 1251, 1259–1260 (Pa. Super. 2005).

      Because contract interpretation is a question of law, this Court is
      not bound by the trial court’s interpretation. Our standard of
      review over questions of law is de novo and to the extent
      necessary, the scope of our review is plenary as the appellate
      court may review the entire record in making its decision.
      However, we are bound by the trial court’s credibility
      determinations.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation

omitted). Moreover, our courts observe the following principles in reviewing

a trial court’s interpretation of a marital settlement agreement:

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

Id.

      We have also reiterated this Court’s limited role in interpreting

contracts between spouses such as property settlement agreements:

             A court may construe or interpret a consent decree
             as it would a contract, but it has neither the power


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            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.

      Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal
      citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213–
      214 (Pa. Super. 2002)). Further, where . . . the words of a
      contract are clear and unambiguous, the intent of the parties is
      to be ascertained from the express language of the agreement
      itself. Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa.
      Super. 2004).

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

      At the November 6, 2015 hearing on Wife’s motion to enforce the PSA

and SPSA, Wife testified that she has primary physical custody of the parties’

eight-year-old daughter, M.C. N.T., 11/6/15, at 24. Wife averred that the

order for support, which is unallocated between M.C. and Wife, is set forth in

the PSA. Id. at 25. Wife, who did not work outside of the home during the

parties’ marriage, presently is employed as an assistant preschool teacher,

earning $13,000 per year at an hourly rate of $10.25. Id. at 31, 51. Wife

testified that Husband works at Coventry Corporate Services (“Coventry”) in

the area of business development for a secondary insurance market, earning

“a million” dollars per year. Id. at 40, 73. Stephanie Baillie, the Director of

Accounting and Employee Resources for Coventry, testified that Husband’s



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salary, excluding bonuses, was reduced to $300,000, down from $400,000.

Id. at 74–75. When asked why Husband’s income changed at the beginning

of 2015, Ms. Baillie responded, “I was told to process a payroll change for

that.    I wasn’t given specific reasons.”      Id. at 104.     Wife presented

Husband’s W-2 statements from 2009 and 2010, which indicated gross

wages of $1,253,085.11 and $1,336,010.92, respectively. Id. at 115. Wife

also presented Husband’s W-2 statement for 2014, which indicated a gross

salary of $495,971.64. Id. at 122.

        The hearing was continued to obtain Husband’s testimony and

ultimately was held on May 4, 2016.           Husband testified that he had

remarried and changed employment just the day before, on May 3, 2016.

N.T., 5/4/16, at 4–5. Husband presented his W-2 for 2015, which showed

his gross income at Coventry to be $352,936.44.            Id. at 11.   Husband

testified his new salary at Miravast would be $250,000. Id. at 6, 12–13, 14.

Husband’s new job included the opportunity to earn commission income, but

Husband presented no documentation of the contract’s provisions.         Id. at

26, 32. Husband admitted that he had not been paying Wife the monthly

support as provided in the PSA since February of 2015, paying her instead,

$1,800 per month. Id. at 33, 35.

        Husband argues that the trial court erroneously considered the

Pennsylvania    Support   Guidelines    in   determining    Husband’s   support

obligation because the parties are divorced and alimony pendente lite no


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longer is applicable. Husband’s Brief at 10. He further asserts that the trial

court abused its discretion in failing to award him a downward modification

of support because it is required by the PSA. Id. at 15. These arguments

concern language set forth in the March 22, 2011 PSA and the June 14,

2016 order. The following language of the PSA is pertinent:

      MONTHLY SUPPORT

      [Husband] will pay [Wife] $3,000 on the first day of a
      month or one half of the support payment bimonthly as
      unallocated support for [Wife] and [M.C.]. All support
      payments will be made until [M.C.] is either 18 years old or
      graduated from high school and until [Wife] has remarried or
      cohabitated.

                                   * * *

      [Husband’s] obligations of this agreement will be
      modifiable in an amount downward, upon a substantial
      change of circumstances relating to [Husband] or [Wife],
      including, but not limited to changes in income,
      (downward defined as below $500,000 in a year or upward
      which is $2M in a year), employment or financial condition,
      physical or emotional health, or other circumstances. If [Wife]
      obtains an Order for child support, the monthly support provided
      for in this agreement will [be] reduced dollar for dollar by the
      Order for child support.

PSA, 3/22/11, at 6 (emphases added).

      The June 14, 2016 appealed order provides, in pertinent part, as

follows:

            AND NOW, this 14th day of June, 2016, upon consideration
      of [Wife’s] April 10, 2015 Motion to Enforce Marital Settlement
      Agreement, [Husband’s] May 1, 2015 Answer and New Matter to
      Motion to Enforce Marital Settlement Agreement, following
      hearings on November 6, 2015[,] and May 4, 2016, and upon
      consideration of [Wife’s] May 13, 2016 letter brief, and

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     [Husband’s] May 13, 2016 letter brief, it is hereby ORDERED and
     DECREED as follows:

          [Wife’s] April 1, 2015 Motion is GRANTED as follows:

          1) [Husband] shall continue to pay the monthly
          unallocated support amount of $3,000.00 for [Wife] and
          the parties’ minor child pursuant to the terms of the March
          22, 2011 Agreement and the June 24, 2013 Supplemental
          Agreement.

          2) [Husband] shall pay to [Wife] all overdue support within
          thirty (30) days of the date of this order.

          [Wife’s] request for counsel fees is DENIED.

            [Husband’s] May 1, 2015 New Matter is GRANTED in part
     as follows:

          1) The [c]ourt finds that the March 22, 2011 Agreement
          does allow for a downward modification of [Husband’s]
          support obligations “upon a substantial change of
          circumstances relating to [Wife] or [Husband].”     See
          Paragraph 3, page 6, March 22, 2011 Agreement.
          However, based on [Husband’s] projected 2016 gross
          annual income of $277,000.00, and [Wife’s] 2016
          projected gross income of $13,089.00, (as [Husband]
          states in his letter brief), the Pennsylvania Support
          Guidelines indicate that if the Guidelines were applied,
          [Husband] would be obligated to pay $1,769.00 in child
          support, and $3,763.00 in alimony pendente lite, for a
          combined total monthly support obligation of $5,532.00.
          Because this amount is significantly higher than
          [Husband’s] current agreed support obligation of
          $3,000.00 per month, the [c]ourt finds that [Husband’s]
          support obligation under the March 22, 2011 Agreement is
          reasonable and does not require further downward
          departure.

          2)    The Court does not find that [Wife] must now
          demonstrate “need” to continue to receive her share of the
          $3,000.00 unallocated monthly support amount since both
          parties agreed in the March 22, 2011 Agreement that
          [Husband] would continue to make support payments until

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           the partiers [sic] child “…is either 18 years old or
           graduated from high school and until [Wife] has remarried
           or cohabitated.”

Order, 6/14/16, at 1–2 (emphasis added). The June 24, 2013 SPSA does

not modify the support amount nor does it allocate the monthly support

obligation. Thus, the monthly obligation of $3,000 remains as unallocated

support in the SPSA, as well.

     Husband argues that the trial court should not have “utilized” the

Pennsylvania Support Guidelines in its opinion because the parties are

divorced. Once they divorced in 2013, Husband proffers that Wife had “no

remaining right to spousal support or alimony pendente lite . . . which

terminate, by definition, upon divorce.” Husband’s Brief at 12. Moreover,

Husband asserts a contradictory claim that the trial court abused its

discretion in failing to modify Husband’s support obligation because his

salary dipped below $500,000 per year. In support, he contends the PSA’s

language required the modification, yet he maintains that both parties were

“aware that this amount could be modified downward.” Husband’s Brief at

17, 18 (emphasis added).

     Regarding its use of the Guidelines, the trial court referred to Pa.R.C.P.

1910.16-1(b), which mandates that the amount of child or spousal support

or alimony pendente lite to be awarded “pursuant to the procedures under

[Pa.R.C.P.] 1910.11 and 1910.12 shall be determined in accordance with the

support guidelines. . . .”      Pa.R.C.P. 1910.16-1(b); see also Trial Court


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Opinion, 10/6/16, at 7.     Further, the trial court noted that Pa.R.C.P.

1910.16-4(a) sets forth the formula that “shall be used” to calculate an

obligor’s share of spousal support and alimony pendente lite obligations.

Trial Court Opinion, 10/6/16, at 7.     The court explained that Pa.R.C.P.

1910.16-4(a), Part IV, provides the specific formula for a calculation of

spousal support or alimony pendente lite.    The trial court determined that

because neither party asserted that the PSA’s designation of $3,000 as

Husband’s support obligation was solely for child support, the court’s

consideration of the Guidelines to determine a spousal support obligation

was proper. Trial Court Opinion, 10/6/16, at 8.

     Regarding Husband’s claim that the trial court abused its discretion

when it declined to award a downward support modification, the trial court

stated that the clause providing for modification in the PSA did not mandate

that a modification would occur; “it only states that [Husband’s] support

obligations ‘will be modifiable’ upon a substantial change in circumstances.”

Trial Court Opinion, 10/6/16, at 11.   The trial court found that Husband’s

support obligation was modifiable but did not find a reduction in Husband’s

support obligation to be reasonable based on the evidence presented at the

hearings. Id.

     We do not find an abuse of discretion by the trial court. We construe

words and phrases according to their common usage.            Cf. 1 Pa.C.S.

§ 1903(a) (“[w]ords and phrases shall be construed according to rules of


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grammar and according to their common and approved usage . . . .”).

Moreover, the trial court was obligated to view the PSA as a whole.

Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super. 1997).

The language of the PSA, specifically its use of the phrase, “[Husband’s]

obligations of this agreement will be modifiable” as opposed to shall be

modifiable, provides that a modification is permissible; it does not provide

that it is mandatory.   PSA, 3/22/11, at 6 (emphasis added); see, e.g.,

Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007)

(stating “shall” evinces a mandatory obligation). Moreover, the PSA’s use of

the term “modifiable” rather than “modified” implies a less certain result,

i.e., that the support amount is merely “capable of being modified,” not that

such modification is mandatory.        WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, (Philip Babcock Gove ed., G. & C. Merriam Co., 1976.).

Furthermore, Husband’s own argument is contradictory—while he asserts, on

one hand, that the court was required to modify support, he acknowledges

that the parties understood that it merely “could” be modified downward.

Husband’s Brief at 17, 18.

     Significantly, the PSA is silent concerning how any modification of

monthly support would be determined.        In fulfilling its role to determine

whether a substantial change of circumstances occurred such that the PSA

should be modified, and in the absence of guidance by the language of the

PSA itself, the trial court merely drew a comparison to the Pennsylvania


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Support Guidelines, it did not apply them.        The trial court noted what

Husband’s obligation would be if the Guidelines were to be applied. Finding

that they compelled an amount nearly double what Husband had agreed to

pay under the PSA, the trial court did not abuse its discretion in declining a

modification of the agreement based upon the evidence presented at the

hearings. These issues lack merit.

      In his final issue, Husband claims the trial court erred in determining

that Wife is compelled to demonstrate a “need” to continue receiving “her

share” of the $3,000 unallocated monthly support. Husband’s Brief at 21.

Initially, we note that Husband’s reasoning flies in the face of his argument

regarding the trial court’s reference to the Support Guidelines.       While he

asserts that the court erred in referencing the guidelines in his first issue, he

now suggests, sub silencio, that the trial court should have conducted a

traditional support analysis of Wife’s income, including assigning her an

earning capacity. Husband’s Brief at 23; N.T., 11/6/15, at 51–57.

      This issue also lacks merit. We rely on the trial court’s explanation, as

follows:

      There was no evidence presented at the hearings that [Wife] had
      to demonstrate her need for her unallocated share of the
      $3,000.00 payment from [Husband] at any time. Nor is there
      any language in either the March 22, 2011 [PSA] or the June 24,
      2013 [SPSA] which requires [Wife] to demonstrate need to
      continue to receive her share of the support payment, even
      under the paragraph providing for downward modification upon a
      substantial change of circumstances. March 22, 2011 [PSA],
      page 6. [Wife] was not required at the time the parties entered
      into the March 22, 2011 [PSA] and the June 24, 2013 [SPSA] to

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      demonstrate the need for alimony pendente lite, spousal
      support, or alimony.      Nor do the agreement and the
      supplemental agreement require her to do so in the event of a
      modification of the support amount. Therefore, the court was
      not required to analyze the issue of [Wife’s] entitlement to
      support when reaching a decision in this matter.

                                   * * *

      [N]othing in the March 22, 2011 [PSA], nor the June 24, 2013
      [SPSA], requires [Wife] to demonstrate need in order to continue
      to receive her share of the $3,000.00 unallocated monthly
      support.    [Husband’s] obligation to pay monthly support to
      [Wife] is one which the parties agreed to. There were no
      contingencies to [Wife’s] continued receipt of the monthly
      support, other than support ending upon the parties’ child either
      turning eighteen years old or graduating from high school, and
      until [Wife] has remarried or cohabitated.

Trial Court Opinion, 10/6/16, at 8–9, 11–12.      Upon review, we find that

Husband’s issues lack merit.    Having determined, therefore, that the trial

court properly analyzed this case, we conclude that the trial court did not

abuse its discretion or commit an error of law.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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