J-A26013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIZABETH M. PIRRO,                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

KENNETH J. SCANLON, JR.,

                         Appellant                  No. 1716 WDA 2015


                   Appeal from the Order October 2, 2015
             In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD11-006795-006


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED DECEMBER 12, 2016

      Kenneth J. Scanlon, Jr. (Father), appeals from the order entered on

October 2, 2015, that granted Elizabeth M. Pirro’s (Mother) exceptions to the

hearing officer’s recommendations related to Father’s petition seeking a

modification of the amount of child support he pays pursuant to an

agreement entered into by the parties. We affirm.

      The trial court provided the following, extensive factual and procedural

history of this matter, stating:

            The parties were married on October 12, 2003[,] and
      divorced in August of 2011. They are the parents of one child,
      [Child], born [in] October [of] 2003. [C]hild has been diagnosed
      with pervasive development disorder and verbal apraxia. In
      contemplation of divorce, the parties executed three written
      agreements on February 10, 2011. The agreement relevant to
      this appeal is the one that governed the parties’ financial
      obligations, including child support[] (“Agreement”).        The
      Agreement provides that Father is to pay Mother child support in
J-A26013-16


       the amount of $1,500 [per month] until [C]hild is 18 and
       finished [with] school.

             Father paid child support in accordance with the
       Agreement until August of 2011, at which time Mother’s driver’s
       license was suspended and Father was required to spend
       additional time with [C]hild. After a heated discussion, Father
       unilaterally reduced the amount of support from $1500 to $700.
       In May of 2012, Father further reduced his child support
       payment to $500 per month.            In September 2012, he
       discontinued all payments. On November 7, 2012, an interim
       order was entered for Father to pay in accordance with the
       Agreement. Father filed a Complaint seeking a guideline support
       calculation and a hearing was held on May 24, 2013.

             At the time of the May 24, 2013 hearing, Father was
       employed as a detective with the Allegheny County Police
       Department. His W-2 income was $77,244 in 2011, $83,583 in
       2012 and on track to be at least $90,000 in 2013. Mother was
       seeking employment at the time and it was anticipated that she
       would secure employment with income of $20,000 to $30,000.
       One month after the Agreement was executed, Mother obtained
       a job. She earned $16,650 in 2011, $24,224 in 2012 and was
       on track to earn $26,987 in 2013. Father argued that Mother
       agreed to a downward modification by failing to seek to enforce
       the Agreement when he unilaterally reduced the child support
       payments. Alternatively, he claimed that he was entitled to a
       guideline support order. Father did not contest the validity or
       enforceability of the Agreement.

             The Hearing Officer found insufficient evidence to support
       an oral modification of the Agreement and no change of
       circumstances to warrant a downward modification of Father’s
       contractual support obligation. Father filed exceptions, which
       were dismissed.      Father appealed to the Superior Court at
       []1803 WDA 2013. Th[e] Superior Court affirmed the trial
       court’s decision, finding no substantial change of circumstances
       to justify downward modification.[1]

____________________________________________


1
  Scanlon v. Pirro, 107 A.3d 231 (Pa. Super. 2014) (unpublished
memorandum) (Scanlon I).



                                           -2-
J-A26013-16


               In October of 2014, Father presented in Motions Court a
        Petition for Modification of Support, again seeking downward
        modification based on changed circumstances.       Father was
        denied a hearing based on insufficient facts warranting
        modification. At Father's request, the case was placed on the
        PACSES system so that he would not have to deal directly with
        Mother.

               In March of 2015, Father filed another Petition for
        Modification, and a hearing was held before Hearing Officer
        Susan Weber on May 8, 2015. At the conclusion of the hearing,
        the Hearing Officer issued a recommendation that Father’s
        petition be granted and that his child support obligation be
        reduced from the contractually agreed amount of $1,500 per
        month to a guideline order of $749.46. Mother filed exceptions
        to the Recommendation, which were granted by the [trial]
        [c]ourt.

Trial Court Opinion (TCO), 12/16/15, at 2-4.        Specifically, the October 2,

2015 order from which Father now appeals, directed Father to pay $1,500

per month plus $200 a month in arrears.             Thus, the monthly support

payment was again in accordance with the parties’ Agreement.

        In support of that determination, the trial court explained in its opinion

that:

        [T]here is no question … that the Agreement is modifiable
        pursuant to 23 Pa.C.S.A. §3105(b). In Nicholson v. Combs,
        703 A.2d 407, 414 (Pa. 1997), the Pennsylvania Supreme Court
        held that downward modification of a contractual support
        obligation is allowable in the face of unforeseen circumstances.
        However, the Court reaffirmed that parties should be held to
        their agreements unless interference is necessary to protect the
        best interests of the child. 703 A.2d at 412. In order to be
        entitled to a downward modification, Father must show that his
        financial circumstances have changed such that he is no longer
        financially able to afford the payments he agreed to make.
        McClain v. McClain, 872 A.2d 856 (Pa. Super. 2005). It is not
        enough that Father show that circumstances have changed since
        the Agreement. Section 3105 permits downward modification of


                                       -3-
J-A26013-16


      the Agreement if Father demonstrates an inability to pay.
      Boullianne v. Russo, 819 A.2d 577, 581 (Pa. Super. 2003).

TCO at 5.

      Father filed a timely appeal from the October 2, 2015 order and in

response to the trial court’s order issued pursuant to Pa.R.A.P. 1925(b), he

filed a concise statement of errors complained of on appeal     Father now

raises the five issues for our review:

      1. The trial court erred in granting [Mother’s] exceptions to
      hearing officer’s recommendations because the parties “financial
      obligations” Agreement dated February 10, 2011 is modifiable
      pursuant to 23 Pa.C.S. § 3105(b).

      2. The trial court erred in granting Mother’s exceptions because
      the Pennsylvania child support guidelines changed in 2013[,]
      which is a substantial change in circumstances pursuant to
      Pennsylvania Rule of Civil Procedure 1910.19(a).

      3. The trial court erred in granting Mother’s exceptions because
      Mother failed to report her loss of employment (a substantial
      reduction in income), and subsequent reemployment (a
      substantial increase in income), both of which would have
      resulted in Father’s support obligation being reviewed.

      4. The trial court erred in granting Mother’s exceptions because
      there are multiple substantial changes in the parties’ income
      since the February 10, 2011 financial agreement was executed.

      5. The trial court erred in granting Mother’s exceptions because
      the parties’ financial agreement was put onto the Pennsylvania
      child enforcement system by order of court dated November 24,
      2014, and thus subjecting Father to wage attachment and all
      enforcement remedies, but not permitting Father to obtain a
      guidelines review.

Father’s brief at 6.

      Initially, we note that when reviewing a child support order, we are

guided by the following well-settled standard:

                                         -4-
J-A26013-16



      “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.” Calabrese v. Calabrese, 452
      Pa. Super. 497, 682 A.2d 393, 395 (1996). 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. Id. 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.
      Depp v. Holland, 431 Pa. Super. 209, 636 A.2d 204, 205-06
      (1994). See also Funk v. Funk, 376 Pa. Super. 76, 545 A.2d
      326, 329 (1988). 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. Depp, 636 A.2d at 206.

McClain, 872 A.2d at 860 (quoting Samii v. Samii, 847 A.2d 691, 694 (Pa.

Super. 2004)).

      In Father’s brief, he first presents arguments related to issues 1, 3,

and 4 together. He begins by citing 23 Pa.C.S. § 3105(b), which states that

“[a] provision of an agreement regarding child support, visitation or custody

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

circumstances.”    Therefore, based on the language of Section 3105(b),

Father lists the substantial changes in circumstances in the instant matter as

“(1) Father’s increased income, (2) Mother’s unreported loss of employment,

(3) Mother’s subsequent increase in income, (4) more than four years

elapsing since the parties’ financial agreement, and (5) the 2013 changes

[to] the Pennsylvania Child Support Guidelines.” Father’s brief at 11.

      Father also cites Scanlon I, wherein this Court acknowledged that

Nicholson v. Combs, 650 A.2d 55 (Pa. Super. 1994) (Nicholson I), which


                                     -5-
J-A26013-16



indicated that a support obligation could not be less than what had been

agreed to, was decided before the 1988 amendments and, therefore, is not

applicable to the case before this Court because the Agreement at issue was

entered into in 2011.   He also points out that Scanlon I recognized that

Section 3505(b) could be the basis for a downward modification of a child

support agreement upon the showing of changed circumstances.         Father

further mentions that McMichael v. McMichael, 700 A.2d 1337 (Pa. Super.

1997), a case that cites Nicholson I, is not applicable to the present

circumstances because here the Agreement does not contain a no-

modification clause as was the case in McMichael. Thus, he claims that a

review must be based upon a change of circumstances pursuant to Section

3505(b).

     Specifically relating to the unreported changes in Mother’s income,

Father contends that the trial court’s reliance on a proportionate growth in

the parties’ incomes was misplaced.      He also asserts that his support

payment of twice the guideline amount prejudices Child when he is Father’s

custody.   He explains this conclusion by noting that the parties share

physical custody of Child, citing Kraisinger v. Kraisinger, 928 A.2d 333,

340 (Pa. Super. 2007), which provides that “parties can make an agreement

as to child support if it is fair and reasonable, made without fraud or

coercion, and does not prejudice the welfare of the children.”          The

Kraisinger case also states that parents “have no power, however, to

bargain away the rights of their children….”   Id.   Lastly, Father contends

                                   -6-
J-A26013-16



that the trial court erred in reversing the hearing officer’s conclusion that

“the passage of time and the 2013 change of the Pennsylvania Child Support

Guidelines amounts” entitled him to a review, i.e., the refusal to review

renders superfluous Pa.R.C.P. 1910.16-1(e) (providing for guideline review

every four years) and Pa.R.C.P. 1910.19(a) (providing for guideline review

due to change in circumstances and/or change to guidelines).

      None of Father’s arguments convinces us that the trial court erred in

concluding that the child support amount as provided for in the parties’

Agreement should not be lowered. We recognize that our Supreme Court’s

decision in Nicholson v. Combs, 703 A.2d 407 (Pa. 1997) (Nicholson II),

reversed an aspect of this Court’s Nicholson I decision, indicating that

“parties who executed agreements on or after February 12, 1988, knew that

both downward and upward modification [of child support] would be a

possibility, and therefore they could negotiate their agreements relying on

this proposition.” Nicholson II, 703 A.2d at 413. See also Patterson v.

Robbins, 703 A.2d 1049, 1051 (Pa. Super. 1997) (stating that “the trial

court has the power to modify the terms of the agreement with regard to

child support upward or downward based on ‘changed circumstances’”).

      Furthermore, the trial court’s reliance on McClain directly relates to

the central issue raised here. In McClain, an agreement had been entered

into at the time of divorce; however, in light of changed circumstances, the

father sought a reduction of his child support obligation.    He asserted an

increase in living expenses due to his remarriage and the birth of a child. He

                                    -7-
J-A26013-16



also claimed he could no longer work a second job. Based on the evidence

presented, the court determined that even if the father’s income would

decrease, it would be equal to the amount he earned at the time he entered

into the agreement. Thus, in affirming the denial of the father’s request to

lower the amount of support, this Court stated that “both the master and the

[trial] court concluded that no change in circumstances that would allow for

a lowering of the amount of support was evident, noting particularly that

[the] [f]ather had not suffered a substantial, involuntary decrease in

employment income.” McClain, 872 A.2d at 863. Based on this discussion,

we conclude that the McClain decision stands for the proposition that the

change in circumstances must relate to the payor’s ability to pay the amount

he or she agreed to pay.

     Likewise, this Court in Boullianne v. Russo, 819 A.2d 577 (Pa.

Super. 2003), stated that:

     [A] family court’s power to modify a support order downward is
     not precluded by the existence of an agreement upon which the
     support order is based. In [a] support action, … the payee may
     not claim that the [agreement] prevents the family court from
     modifying the order downward if such reduction is necessary to
     prevent payor from having to comply with an order that he
     cannot pay due to changed circumstances. Because failure to
     comply with a support order can lead to incarceration, the court
     must be able to reduce the amount if the payor establishes an
     inability to pay.

Id. at 580 (quotation marks and citations omitted).

     Here, the changes in circumstances asserted by Father do not

demonstrate his inability to pay the agreed upon amount.      Therefore, we


                                   -8-
J-A26013-16



conclude that Father failed to prove that he was entitled to a reduction in the

amount of child support he must pay as set forth in the Agreement.

      Father next presents arguments related to issues 2 and 5.         In this

portion of his brief, Father reiterates his cursory statement relating to

Pa.R.C.P. 1910.16(e) and Pa.R.C.P. 1910.19(a).       Specifically, he contends

that both of these sections provide for periodic review of the amount of

support to determine whether modification of the amount of support is

warranted. Father also argues that because a court order, dated November

24, 2014, entered the parties’ Agreement into the PACSES system, he was

subjected to wage attachment and other enforcement remedies, while

Mother benefitted from this arrangement. Father again discusses Mother’s

failure to report the changes in her income as required by Pa.R.C.P.

1910.17(b) (requiring parties to report any material changes relevant to the

level of support).   He also contends that the changes in income for both

parties were substantial and warranted guideline reviews.          To further

support this assertion, Father relies on Pa.R.C.P. 1910.19(c), which states:

      Pursuant to a petition for modification, the trier of fact may
      modify or terminate the existing support order in any
      appropriate manner based upon the evidence presented without
      regard to which party filed the petition for modification. If the
      trier of fact finds that there has been a material and substantial
      change in circumstances, the order may be increased or
      decreased dependent upon the respective incomes of the parties,
      consistent with the support guidelines and existing law, and each
      party’s custodial time with the child at the time the modification
      petition is heard.




                                     -9-
J-A26013-16



     Taken together, Father appears to be suggesting that because the

parties’ Agreement was entered into the PACSES system, the Agreement no

longer has any effect. However, he has not provided any supporting case

law, statute, or rule that directs or even suggests that this Court conclude

that the parties’ Agreement is void under the circumstances here.

     The trial court addressed Father’s arguments, stating:

     Father asserts that, by placing the Agreement on PACSES, he is
     entitled to a guideline support order. He argues that once the
     case is entered into PACSES, there is no longer a private case.
     Father claims that Mother benefits from the additional
     enforcement provisions available under PACSES and should have
     to “take the good with the bad.” The [c]ourt disagrees. The
     Agreement Father signed was put into PACSES at Father’s
     request as a convenience to him.          The PACSES [o]rder
     specifically states under “Other Conditions” that “Case on the
     11/25/14 court list to enter the private order dated 2/11/11.”
     The Agreement does not simply vanish once it is placed on
     PACSES.

                                    ***

          Parties to an agreement for child support cannot divest
     themselves of all obligations pursuant to that agreement merely
     by having it placed on the PACSES system in Motion’s Court.
     The parties entered into a valid and binding contract under which
     Father agreed to pay child support of $1500 per [month] until
     the child is 18. The burden is on Father to prove by the
     preponderance of the evidence that a material and substantial
     change of circumstances has occurred which renders him unable
     to meet his support obligation.

TCO at 5, 6.

     We concur with the trial court’s reasoning.    Moreover, we recognize

that a hearing was held at which Father had the opportunity to present

evidence of changed circumstances, showing his financial inability to


                                   - 10 -
J-A26013-16



continue to make the payments to which he had agreed. He simply did not

carry his burden of proving that he was entitled to such a reduction.

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

ordering that the amount of child support as stated in the Agreement should

continue.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




                                   - 11 -
