J-A16028-15

                             2015 PA Super 213



EDWARD T. EGAN                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

RACHEL MCGRAW EGAN

                        Appellee                   No. 3159 EDA 2014


            Appeal from the Order Entered December 17, 2013
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2004-00979


EDWARD T. EGAN                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

RACHEL MCGRAW EGAN

                        Appellee                   No. 3184 EDA 2014


             Appeal from the Order Entered October 23, 2014
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2004-00979


BEFORE: LAZARUS, OLSON and PLATT,* JJ.

OPINION BY OLSON, J.:                            FILED OCTOBER 05, 2015

     Edward T. Egan (“Husband”) appeals from an order entered on

October 23, 2014. In this case of first impression, we consider whether a

stipulation to modify a previous court order setting alimony payments is

governed by 23 Pa.C.S.A. § 3105(c), which prohibits judicial modification of


*Retired Senior Judge assigned to the Superior Court.
J-A16028-15



an agreement regarding alimony, or by 23 Pa.C.S.A. § 3701(e), which

permits a trial court to modify alimony orders. After careful consideration,

we hold that section 3105(c) governs where the parties reach a stipulation

that modifies a prior order directing the payment of alimony. In this case,

the parties did just that. Therefore, the stipulation they reached is governed

by section 3105(c) and is not subject to judicial modification.    As we also

conclude Husband is not entitled to relief on his remaining claims, we affirm.

         The factual background and procedural history of this case are as

follows. Husband and Rachel McGraw Egan (“Wife”) are the parents of three

adult children, aged 28, 25, and 22.     On May 1, 2002, after a three-day

bench trial, the Circuit Court for Montgomery County, Maryland (“the circuit

court”) entered a judgment terminating the marriage of Husband and Wife.

The judgment of divorce required Husband to pay $4,000.00 per month in

child support, $4,000.00 per month in alimony for a period of one year, and

$3,000.00 per month in alimony thereafter.    On January 21, 2004, Husband

filed a praecipe to register the circuit court’s judgment in the Court of

Common Pleas of Montgomery County, Pennsylvania (“the trial court”).

         On April 12, 2005, Husband and Wife entered into a stipulation

regarding child support and alimony. Per that stipulation, the parties agreed

to transfer the circuit court’s alimony and child support order to the trial

court.    The parties further agreed that, in order to extinguish outstanding

child support and alimony arrearages, Wife would accept a one-time

payment of $7,000.00 from Husband. The parties also agreed that Husband

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would pay $1.00 per month in alimony through June 2012.           Thereafter,

Husband agreed to pay $3,000.00 per month in alimony until Husband’s

death, Wife’s death, Wife’s cohabitation, or Wife’s remarriage.           The

stipulation also provided that Husband would pay $4,500.00 in child support

through June 2012.      If, however, Husband sought to decrease his child

support obligation prior to July 2012, his alimony obligation would increase

by the same amount and Husband would be required to reimburse Wife for

her increased tax burden.    In this event, the parties’ stipulation expressly

provided that Husband’s increased alimony obligation would not be subject

to judicial modification.   On April 19, 2005, the trial court adopted the

stipulation as an order of court “until further [o]rder of the Montgomery

County Court of Common Pleas.” Order, 4/18/15.

      On February 1, 2013, Husband filed a petition seeking modification of

his alimony obligation.     On March 7, 2013, Wife filed an answer and

counterclaim. In her counterclaim, Wife sought enforcement of the April 19,

2005 court order.    She further requested the trial court find Husband in

contempt for violating the April 19, 2005 court order. Finally, Wife sought

counsel fees relating to her defense against Husband’s petition.           On

December 17, 2013, the trial court found that the April 19, 2005 order was

not subject to modification under 23 Pa.C.S.A. § 3105(c) in the absence of a

specific provision allowing judicial amendment.        It, therefore, denied

Husband’s petition and scheduled a hearing on Wife’s counterclaim.

Husband appealed the December 17, 2013 order and this Court quashed the

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appeal as taken from a non-final order. Egan v. Egan, 158 EDA 2014 (Pa.

Super. Feb. 21, 2014) (per curiam).

     On August 22, 2014, a hearing on Wife’s counterclaim was held. On

October 23, 2014, the trial court found in favor of Wife on her counterclaim

for enforcement and found Husband in contempt of the April 19, 2005 court

order.   The trial court ordered Husband to pay $61,654.00 in back child

support and alimony. It further ordered attachment of Husband’s wages in

order to pay the $3,000.00 in monthly alimony required by the April 19,

2005 order. The trial court, however, declined to award Wife counsel fees.

This timely appeal followed.

     Husband presents five issues for our review:

     [1.] Where an indefinite alimony order which is not the result of
     an agreement between the parties is entered by a trial court and
     subsequently modified by stipulation, is the order entered on
     that stipulation subject to further [c]ourt modification pursuant
     to 23 Pa.C.S.A. § 3701(e) absent language in the stipulation
     permitting modification?

     [2.] Where a stipulation for indefinite alimony modifies [a] prior
     court order[ for] alimony but does not contain language
     permitting further modification, does that indefinite alimony
     become permanent alimony not subject to further modification
     based on changed circumstances?

     [3.] Does a stipulation between the parties providing for
     indefinite alimony which modified prior [c]ourt ordered alimony
     constitute a contract not subject to modification pursuant to 23
     Pa.C.S.A. § [3105](c) absent modification language in the
     stipulation?

     [4.] Should [Husband] have been found to be in contempt of an
     alimony order despite having presented evidence of his inability


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      to comply with the order and despite having made significant
      and substantial efforts to comply with the order?

      [5.] Should [Husband] be required to pay an excessive amount
      of alimony based on a stipulation thereby depriving [Husband] of
      a reasonable standard of living?

Husband’s Brief at 6.

      In his first three issues, Husband argues that the April 19, 2005 order

is subject to modification pursuant to 23 Pa.C.S.A. § 3701(e).      The trial

court found that the April 19, 2005 order was not subject to modification

pursuant to 23 Pa.C.S.A. § 3105(c).        Wife defends this determination.

“Statutory interpretation is a question of law and, as such, our standard of

review is de novo and our scope of review is plenary.”             Gallo v.

Conemaugh Health Sys., Inc., 114 A.3d 855, 863 (Pa. Super. 2015)

(internal quotation marks and citation omitted).

      “When interpreting a statute, we are guided by the Statutory

Construction Act,” 1 Pa.C.S.A. § 1501 et seq.      W.C.F. v. M.G., 115 A.3d

323, 333 n.1 (Pa. Super. 2015). “[O]ur paramount interpretative task is to

give effect to the intent of our General Assembly in enacting the particular

legislation under review.”   Commonwealth v. Schultz, 116 A.3d 1116,

1120 (Pa. Super. 2015) (internal quotation marks and citation omitted).

“Generally, the best indication of the General Assembly’s intent may be

found in the plain language of the statute. In this regard, it is not for the

courts to add, by interpretation, to a statute, a requirement which the

legislature did not see fit to include.”   Commonwealth v. Devries, 112



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A.3d 663, 670 (Pa. Super. 2015) (internal quotation marks and citations

omitted). “Statutory provisions relating to the same subject must be read in

pari materia.”   Pilchesky v. Lackawanna Cnty., 88 A.3d 954, 965 (Pa.

2014), citing 1 Pa.C.S.A. § 1932. Furthermore,

     [w]henever a general provision in a statute shall be in conflict
     with a special provision in the same or another statute, the two
     shall be construed, if possible, so that effect may be given to
     both. If the conflict between the two provisions is irreconcilable,
     the special provisions shall prevail and shall be construed as an
     exception to the general provision, unless the general provision
     shall be enacted later and it shall be the manifest intention of
     the General Assembly that such general provision shall prevail.

1 Pa.C.S.A. § 1933.

     We thus turn to the statutory language at issue in this case. Section

3105 provides, in relevant part:

     (a) Enforcement.--A party to an agreement regarding matters
     within the jurisdiction of the court under this part, whether or
     not the agreement has been merged or incorporated into the
     decree, may utilize a remedy or sanction set forth in this part to
     enforce the agreement to the same extent as though the
     agreement had been an order of the court except as provided to
     the contrary in the agreement.

                                   ***

     (c) Certain provisions not subject to modification.--In the
     absence of a specific provision to the contrary appearing in the
     agreement, a provision regarding the disposition of existing
     property rights and interests between the parties, alimony,
     alimony pendente lite, counsel fees or expenses shall not be
     subject to modification by the court.

23 Pa.C.S.A. § 3105. Section 3701(e) provides that:




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J-A16028-15


     (e) Modification and termination.--An order entered pursuant to
     this section[, relating to alimony,] is subject to further order of
     the court upon changed circumstances of either party of a
     substantial and continuing nature whereupon the order may be
     modified, suspended, terminated or reinstituted or a new order
     made. Any further order shall apply only to payments accruing
     subsequent to the petition for the requested relief. Remarriage
     of the party receiving alimony shall terminate the award of
     alimony.

23 Pa.C.S.A. § 3701(e).

     Husband first argues that there is no conflict between sections 3105(c)

and 3701(e). He argues that section 3105(c) only applies to comprehensive

marital settlement agreements reached at the time of divorce.          In other

words, Husband argues that in order for an alimony agreement not to be

subject to modification, it must be included as one part of a larger marital

settlement agreement. Husband contends, therefore, that section 3701(e)

applies in situations like this, where the stipulation covers only alimony and

was entered after the parties’ divorce.         In support of this argument,

Husband first points to the use of the word “provision” twice in the text of

section 3105(c).    We conclude that Husband’s proposed construction of

section 3105(c) does not comport with its plain language.

     As   noted    above,   section   3105(c)   prohibits   modification   of   an

agreement unless a “specific provision to the contrary” appears in the

agreement. 23 Pa.C.S.A. § 3105(c). The word “provision” in this context

refers only to a provision in the parties’ agreement allowing for amendment.

It does not imply that a broader agreement is necessary in order for section

3105(c) to apply. Instead, the use of the word “provision” merely indicates


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J-A16028-15



that, in order to permit amendment, the parties’ agreement must include a

statement that the court has the power to change the agreement absent the

consent of both parties.

      The second use of the word “provision” in section 3105(c) also does

not support Husband’s argument. Like the first use of the word “provision,”

the second use of that term refers simply to certain terms within an

agreement that are not subject to judicial revision in the absence of specific

language indicating the parties’ consent to such review.         Contrary to

Husband’s suggestion, while section 3105(c) discusses legal consequences

that arise from the inclusion (or exclusion) of certain language in an

agreement between the parties, it sets no threshold requirement that the

included language appear in a more comprehensive agreement before

section 3105(c) can be applied.      In other words, not every agreement

covered by section 3105 must include the eight types of provisions discussed

in section 3105. Our reading of section 3105(c) finds further support in the

use of the disjunctive “or,” which indicates that section 3105(c) can apply to

an agreement which relates to fewer than the five types of provisions

outlined in the subsection.   There is no indication, as Husband seems to

suggest, that section 3105(c) excludes an agreement that covers only

certain subjects such as alimony.

      Husband also argues that the phrase “disposition of” in section

3105(c) indicates that it is inapplicable in the present factual scenario.

Specifically, Husband argues that the issue of alimony was “disposed of” in

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J-A16028-15



the circuit court’s divorce judgment.       According to Husband, the parties’

stipulation merely modified this previously addressed issue.       Because the

circuit court’s divorce judgment “disposed of” Husband’s alimony payments

to Wife, Husband maintains that section 3701(e) applies and that the

parties’ stipulation is subject to judicial modification.

      This argument also misconstrues the language of section 3105. The

phrase “disposition of” modifies the initial item in the list of topics that a

court cannot alter absent the parties’ consent. The first item refers to the

allocation, or “disposition of,” existing property rights and interests between

the parties. Thus, the term “disposition of” does not appear to modify the

word “alimony” in section 3105(c).          In any event, even if the phrase

“disposed of” did modify the word “alimony” in section 3105(c), that does

not mean a stipulation that modifies court-ordered alimony is not covered by

the statutory provision.    An issue can be “disposed of” on more than one

occasion.    For example, arrangements regarding child custody can be

disposed of dozens of times throughout the course of a divorce.         Section

3105(c) does not say “disposition for the first time.”      Instead, it merely

refers to the “disposition of” various issues that arise in divorce litigation.

Therefore, it could refer to a first disposition or a subsequent disposition. As

noted above, we may not “add, by interpretation, to a statute, a

requirement which the legislature did not see fit to include.” Devries, 112

A.3d at 670 (internal quotation marks and citations omitted).         Husband

attempts to do exactly that by adding to section 3105(c) the requirements

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that the agreement in question cover more than just alimony and be entered

into prior to any court order relating to the provisions set forth in the

statute. These prerequisites appear nowhere in the statute. Accordingly, we

reject Husband’s interpretation of section 3105.

     Husband also relies upon a specific portion of the parties’ stipulation to

support his claim that judicial amendment is proper. Specifically, Husband

cites a provision in the parties’ stipulation which provided that, if Husband

sought to reduce his child support obligation, then his alimony payment

would increase by that same amount and he would become responsible for

Wife’s added income tax burden.       See Appellant’s Brief at 16.     In this

instance, the agreement barred judicial modification of the increase in

Husband’s alimony obligation. Husband argues that since he did not seek a

reduction in child support, his alimony payment always remained subject to

judicial modification. Despite Husband’s contentions, we read this provision

as supportive of our conclusion that section 3105(c) precludes judicial

modification of Husband’s negotiated alimony payment.

     Under section 3105(b), the trial court possesses the authority to

modify child support obligations notwithstanding the provisions of an

agreement between divorce litigants.        See 23 Pa.C.S.A. § 3105(b).     By

including a provision within their agreement that penalized Husband if he

took advantage of section 3105(b), the parties specifically acknowledged the

applicability of section 3105 when they entered the stipulation and took

affirmative steps to preclude judicial modification of Husband’s alimony

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payments.     Therefore, we do not read this provision as supportive of

Husband’s claim on appeal.

      Furthermore, Husband’s construction of section 3105(c), which limits

that provision to situations in which parties enter into comprehensive marital

settlement agreements prior to any court action, would not give full effect to

section 3105(c). Nothing in the plain language of section 3105(c) prevents

the private reordering of alimony obligations after a judicial alimony order

has been entered. Moreover, given our concerns for judicial economy and

the preservation of limited judicial resources, we see no reason to forbid

such activity.   It would discourage litigants from resolving their alimony

disputes if section 3105(c) did not apply in such situations.        Instead,

negotiated resolution of disagreements over alimony would always be

subject to judicial reinterpretation and litigants would have no incentive to

bargain in good faith because the prospect of enforcement would lack

certainty. Therefore, we reject Husband’s construction of sections 3105(c)

and 3701(e) and turn to our own analysis of the applicable statutory

language.

      The plain language of section 3105(c) prohibits judicial modification of

alimony agreements while the plain language of section 3701(e) permits the

modification of court-ordered alimony. We turn now to consider whether the

application of section 3105(c) to stipulations that modify court-ordered

alimony conflicts with the underlying purposes of the respective statutory

provisions. See 1 Pa.C.S.A. § 1933.

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      In 1988, our General Assembly significantly amended the Divorce

Code. See 1988 P.L. 66. As relevant to this case, the General Assembly

enacted 23 P.S. § 411.1 (repealed).         Effective March 19, 1991, the

legislature repealed section 411.1 and replaced it with section 3105.   See

1990 P.L. 1240. Section 3105 is substantively the same as section 411.1.

“While § 3105(c) was a newly enacted amendment in 1988, it was merely a

codification of the existing Pennsylvania law.” McMahon v. McMahon, 612

A.2d 1360, 1365 (Pa. Super. 1992) (en banc).

      This Court has addressed the purpose behind the common law as

codified by section 3105(c). In DeMatteis v. DeMatteis, 582 A.2d 666 (Pa.

Super. 1990), we held that prohibiting modification of certain provisions

found in marital settlement agreements “acts to protect such pre-existing

[contractual] rights and obligations.”     Id. at 672 (emphasis removed);

McMahon, 612 A.2d at 1365 (citation omitted).         In other words, the

purpose of section 3105(c) is to encourage marital settlement agreements

by assuring the parties that the courts will enforce the agreements as

written.

      On the other hand, section 3701(e) recognizes that court-ordered

alimony is based upon 17 statutory factors. See Lawson v. Lawson, 940

A.2d 444, 447 (Pa. Super. 2007) (construing 23 Pa.C.S.A. § 3701(b)),

appeal denied, 951 A.2d 1165 (Pa. 2008). Therefore, when circumstances

change, the amount of alimony due should also change to reflect the new

economic realities of the parties. See Levine v. Levine, 520 A.2d 466, 468

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(Pa. Super. 1987) (“[T]he circumstances of the parties are subject to

changes throughout each of the steps in the dissolution of the marriage. . . .

The trial court, consequently, must consider these changes in deciding

whether to terminate the award, grant a new form of award, or change the

amount of the award.”); but see Willoughby v. Willoughby, 862 A.2d

654, 656-658 (Pa. Super. 2004) (although incarceration may change the

statutory alimony factors it is not a change in circumstances warranting

revised alimony).    Thus, the purpose of section 3701(e) is to ensure that

alimony, which is not the result of an agreement between the parties,

remains    subject   to   modification   to   reflect   the   parties’   changed

circumstances.

      It is evident that our application of section 3105(c) in this case will not

offend the purposes of sections 3105(c) and 3701(e). Specifically, if alimony

agreements are to be encouraged, then section 3105(c) must govern.

Parties will be willing to enter into such agreements only if they know that

courts will enforce the terms of the agreement. Without such assurances,

there would be little incentive to enter into an alimony agreement. Broader

application of section 3105(c) is necessary to satisfy its purpose. We also

note that section 3105(c) allows the parties to permit modification of

alimony.   This may be beneficial if either or both parties anticipate future

changes in their financial conditions.

      Section 3701(e)’s purpose is satisfied if it is applied only where no

alimony agreement has been formed. When an alimony agreement exists,

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the statutory factors outlined in section 3701(b) have not been employed to

determine the amount of alimony that is due. Instead, the parties agree to

fix the level of alimony based upon factors they deem relevant.               Thus,

application of section 3701(e) in cases where an alimony agreement exists is

unnecessary. On the other hand, where alimony is implemented by judicial

order, application of section 3701(e) is necessary to effectuate its purpose.

In such cases, the court determines alimony based upon a snapshot of the

section 3701(b) factors at the time of the divorce.            Over time, however,

those factors can change significantly. The obligor may lose his or her job

and, therefore, not be able to provide the same standard of living to his or

her former spouse. Section 3701(e) is necessary in those cases so the trial

court can alter the alimony obligation when its snapshot is no longer an

accurate picture of the parties’ financial situation. It would be unequitable to

require an individual to pay an unreasonable amount of alimony when he or

she did not consent to the alimony award.

      For all of these reasons, we hold that section 3105(c) governs a

stipulation to modify a pre-existing alimony obligation.                Accordingly,

Husband is not entitled to relief on his first three claims.

      In his fourth and fifth issues, Husband argues that the trial court erred

by enforcing the terms of the parties’ agreement. Specifically, he argues it

is inequitable to find him in contempt for violating a court order despite his

significant   attempts   at   satisfying   his   obligations    under   the   order.

Furthermore, he contends that requiring a $3,000.00 per month alimony

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payment would result in him having an unreasonable standard of living. As

this Court has explained:

      To be found in civil contempt, a party must have violated a court
      order. Accordingly, the complaining party must show, by a
      preponderance of the evidence, that a party violated a court
      order. The alleged contemnor may then present evidence that
      he has the present inability to comply and make up the arrears.

Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. 2011) (internal

citations omitted). “[A] trial court’s findings on a contempt petition will not

be disturbed absent an abuse of discretion.” Mazurek v. Russell, 96 A.3d

372, 378 (Pa. Super. 2014).

      In this case, there is no dispute that Husband violated the April 19,

2005 court order. Instead, Husband argues that he proved he was unable to

comply with the trial court’s order.    Husband argues that the trial court

effectively ordered him to surrender 62% of his net monthly income to Wife.

As the trial court aptly noted, however, Husband’s “annual income of

approximately $89,000.00 allowed him enough disposable income to make

financial charitable contributions [of approximately $3,000.00 per year] in

2009, 2010, and 2011.” Trial Court Opinion, 1/23/15, at 8. The trial court

also found that Husband “provided no persuasive evidence of his current

monthly expenses which would demonstrate that paying his child support

and alimony obligations was an ‘impossibility’ based on his monthly income.”

Id.   After careful review of the certified record, we conclude that the trial

court’s factual findings are supported by the record.        See, e.g., N.T.,

8/22/14, at 95-96.

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     Furthermore, even if Husband is correct that the trial court ordered

him to surrender 62% of his income, his remaining net income is over 150%

of the federal poverty guidelines. See 80 Fed. Reg. 3236 (Jan. 22, 2015).

Thus, he is not being denied a reasonable standard of living because of the

trial court’s contempt order. Instead, he is being required to live a modest

lifestyle because of his decision to enter into the alimony agreement with

Wife. Thus, we conclude that the trial court did not abuse its discretion in

finding Husband in contempt of court.

     In sum, we hold that section 3105(c) governs when the parties enter a

stipulation to modify court-ordered alimony.      As such, the trial court

correctly determined that it lacked the authority to modify the parties’

alimony agreement.     In addition, the trial court properly held Husband in

contempt and ordered him to pay $3,000.00 per month in alimony along

with back alimony and child support.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2015




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