J. A26007/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LAURA M. POTORSKI                        :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                  v.                     :
                                         :
ROBERT D.J. POTORSKI,                    :            No. 244 MDA 2015
                                         :
                       Appellant         :


               Appeal from the Order Dated January 9, 2015,
           in the Court of Common Pleas of Lackawanna County
                    Civil Division at No. 2006 FC 41640


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 09, 2015

     Appellant, Robert D.J. Potorski (“Husband”), appeals from the order of

the trial court that dismissed his exceptions to the Master’s Report and

Recommendation in this divorce case.         In this appeal, Husband challenges

the trial court’s denial of his request seeking a downward modification of

alimony due appellee, Laura M. Potorski (“Wife”). We affirm.

     The relevant facts are as follows.          The parties were married on

May 30, 1980, and separated in December of 2006. A complaint in divorce

was filed on January 3, 2007.      Paul Sotak, Esq., was appointed Master in

Divorce in April of 2008. Four Master’s hearings were conducted in this case

on the following dates: February 27, 2009, May 29, 2009, April 20, 2011,

and April 20, 2012.




* Senior Judge assigned to the Superior Court.
J. A26007/15


      The trial court described what occurred at the May 29, 2009 hearing as

follows:

           During the Master’s hearing on May 29, 2009, the
           parities [sic] agreed on the record as follows:

                 [Husband] agrees to pay to [Wife] the
                 current order of spousal support, entered
                 [] September 8, 2008, according to its
                 terms and conditions, for a period of one
                 year. In the event that a divorce decree
                 should enter, the spousal support award
                 would be converted to an award of
                 alimony . . . Upon the sale of the marital
                 home and [Wife’s] receipt of her
                 distributive share of the proceeds, as
                 provided, in both property settlement
                 agreements, the Court may enter an
                 award of alimony in [Wife’s] favor in the
                 amount of $7,000 per month until such
                 time as she reaches age 62, and
                 terminable upon her death, re-marriage
                 or cohabitation with a member of the
                 opposite sex, as prohibited by Section
                 2706 of the Divorce Code. The amount
                 and duration of the alimony shall not be
                 subject to any modification by [Wife];
                 however both the amount and duration
                 of the alimony shall be subject to a
                 downward modification by [Husband]
                 upon proof of a substantial and material
                 change in economic circumstances . . .
                 But there needs to be a substantial
                 change in his financial circumstances
                 that would lead to a right to attempt to
                 modify . . . And it could result as a result
                 of [sic] health or any other circumstance
                 not within his control. (H.T. 05/29/09,
                 pp. 5 -7).

           Both parties stated under oath that they understood
           the terms of the agreement. (H.T. 05/29/09, pp. 11,
           14-5).


                                    -2-
J. A26007/15



                   At the time of hearing, the only income
             information available to the Master as evidence was
             Husband’s 2007 Tax Return, which showed an
             adjusted gross income of four hundred eighty seven
             thousand two hundred fifty dollars ($487,250.00).
             (Master’s Report 07/24/12, pp. 3-4). Husband failed
             to provide any information of his 2008 or 2009
             income at any time during the above referenced
             proceedings.

Trial court opinion, 3/31/15 at 2-3.

      A divorce decree was entered on August 4, 2009.        A third Master’s

hearing was held on April 20, 2011, where all economic issues were resolved

except for the division of some miscellaneous personal property.          On

December 1, 2011, Husband filed a petition to modify alimony claiming that

his earnings and earnings capacity have significantly decreased. The fourth

Master’s hearing was scheduled for April 20, 2012, to address the division of

the remaining personal property and the modification of alimony.         The

parties agreed that the Master would retain jurisdiction over the alimony

agreement.

      Following the April 20, 2012 hearing, the Master issued his Report and

Recommendations on July 24, 2012.        In his report, the Master found that

Husband did not demonstrate a change of circumstances warranting a

downward modification of the alimony agreement. Specifically, the Master

reviewed Husband’s income for the following years:




                                       -3-
J. A26007/15


              2007   income - $487,250
              2008   income - $739,990
              2009   income - $644,122
              2010   income - $623,756
              2011   individual adjusted gross income - $548,290

         As reflected above, Husband’s income has continued to exceed the

2007 figure. Husband filed exceptions to the Report and Recommendations

on August 8, 2012, and requested a hearing.         In the meantime, Husband

filed an appeal with this court regarding a separate contempt issue.     As a

result, a hearing could not be held until the record was returned to the trial

court.    On January 9, 2015, the trial court heard argument and dismissed

Husband’s exceptions. This appeal followed.1

         Husband raises the following issue for our consideration:

              Where the parties agreed to a monthly alimony
              amount on May 29, 2009 and that [Husband] could
              later seek reduction if his income decreased, was it
              error of law for the court to use his 2007 income as
              the starting point for later calculation of any
              decrease in income?

Husband’s brief at 4.

                     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.


1
  The trial court did not order Husband to file a statement of errors
complained of on appeal pursuant to Rule 1925(b). The trial court’s opinion
addressed the issues raised in Husband’s exceptions.


                                       -4-
J. A26007/15


                   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.

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

and quotations omitted).

     Husband argues the trial court erred when it used his 2007 income as

a starting point for the determination of whether his income decreased after

the May 29, 2009 alimony agreement. (Husband’s brief at 8.) In light of

the facts of record, the position taken by Husband has no merit.

     According to the Master’s Report, on February 20, 2009, Husband

provided his 2007 individual tax return showing an adjusted gross income of

$487,250.    Husband was also to provide his 2008 W-2 but did not.

(Master’s Report, 7/24/12 at 3-4.) As such, the only income figure available

to the parties at the May 29, 2009 Master’s hearing when they reached their

agreement of $7,000 per month in alimony was the 2007 income figure of

$487,250. Interestingly, as we have already set out, the income figures for

the years 2008 through 2011 are all greater than the year 2007.

     By the very terms of the agreement Husband entered into, in order to

modify, Husband has to prove not only a change in his economic

circumstances but a “substantial and material change.”        (See notes of

testimony, 5/29/09 at 6-7.)    When Husband filed his petition to modify


                                    -5-
J. A26007/15


alimony in December of 2011, his income or economic circumstances

certainly appeared higher or better than any of the previous years in

question.   Simply put, Husband is hard-pressed to make a plausible

argument that his alimony payments to Wife should be reduced.

     Accordingly, we affirm the order of the trial court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/9/2015




                                    -6-
