J-S46026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN R. AZALTOVIC, JR.,                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

AMY E. HEDGES,

                        Appellant                   No. 2090 MDA 2016


             Appeal from the Order Entered November 23, 2016
          In the Court of Common Pleas of Northumberland County
                     Civil Division at No(s): CV-12-2116


BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 11, 2017

      Appellant, Amy E. Hedges (hereinafter “Mother” or “Wife”), appeals

from the order entered on November 23, 2016. The subject order granted,

in part, the “Petition for Contempt and to Enforce the Marital Settlement

Agreement” that was filed by John R. Azaltovic, Jr. (hereinafter “Father” or

“Husband”), and ordered Mother to “pay [Father] $910.00 per month for two

years pursuant to Paragraphs 15 and 16 of the Marital Separation

Agreement.” Trial Court Order, 11/23/16, at 1. Respectfully, we vacate and

remand.

      Mother and Father married in 2005 and separated on October 10,

2011. Two children were born of the marriage: J.R.A. (born in July 2005)

and D.R.A. (born in December 2009) (hereinafter, collectively, “the

Children”).   Separation Agreement, 11/9/11, at 1.       Mother and Father



* Former Justice specially assigned to the Superior Court.
J-S46026-17



divorced on May 8, 2013, by decree entered in the Court of Common Pleas

of Northumberland County, Pennsylvania. Divorce Decree, 5/8/13, at 1.

     Prior to their divorce, the parties entered into a Separation Agreement.

Under the terms of the Separation Agreement, Mother has primary physical

custody, and the parties share legal custody, of the Children.      Separation

Agreement, 11/9/11, at ¶ 23.     Moreover, the following two paragraphs of

the Separation Agreement have relevance to this appeal:

        15. SUPPORT, [ALIMONY PENDENTE LITE (APL)] &
        ALIMONY.

        Husband and Wife both agree to waive any right they may
        have to any spousal support, APL or alimony unless Wife
        files for child support in the future. In said event, Husband
        shall be entitled to a credit of [$910.00] per month against
        any child support Wife may receive for a period of two []
        years from the date when Wife would file for said child
        support. In the event the credit would exceed the child
        support amount, Wife shall not be obligated to pay Husband
        the difference. This obligation and credit shall only exist in
        the event Wife files for child support in the future. In the
        event Husband would file for child support, he shall not be
        entitled to the above-referenced credit.

        16. CHILD SUPPORT.

        Wife agrees she shall not file for child support against
        Husband at the present time. If at any time in the future
        Wife files for child support against Husband he shall be
        entitled to a spousal support, APL or alimony credit as
        referenced to in Paragraph 15. The party with primary
        physical custody shall be able to file for child support at any
        time.

Separation Agreement, 11/9/11, at ¶¶ 15-16.




                                     -2-
J-S46026-17



       Under the terms of both the divorce decree and the Separation

Agreement, the Separation Agreement was incorporated, but not merged,

into the divorce decree. Id. at ¶ 3; Divorce Decree, 5/8/13, at 1.

       Following the separation, Mother and the Children relocated to

Virginia. As the trial court explained: “[i]n June [] 2016, [Mother] sought

and received a child support order in Virginia. This order is dated June 1,

2016 and pursuant thereto, [the Virginia court declared that Mother was

entitled to] receive $1,043.00 per month for the support of the couple’s two

minor children.”        Trial Court Opinion, 3/21/17, at 2 (some internal

capitalization omitted).

       On August 1, 2016, Father filed a “Petition for Contempt and

Enforcement of Marital Separation Agreement” (hereinafter “Father’s Petition

to Enforce” or “Father’s Petition”) in the Court of Common Pleas of

Northumberland County.           Within Father’s Petition, Father claimed that –

since Mother sought and received child support from him – he was now

entitled to receive $910.00 per month in alimony from her, pursuant to

Paragraphs 15 and 16 of the Separation Agreement.            Father’s Petition to

Enforce, 8/1/16, at 4.1
____________________________________________


1 Within Father’s Petition, Father also claimed that Mother was in contempt
for noncompliance with the Separation Agreement, as she filed for child
support and yet refused to pay Father the $910.00 per month that, he
claimed, he was entitled to receive under the terms of the Separation
Agreement. Father’s Petition to Enforce, 8/1/16, at 2. Father claimed that,
pursuant to the Separation Agreement, Mother was required to reimburse
(Footnote Continued Next Page)


                                           -3-
J-S46026-17



      Mother opposed Father’s Petition and claimed that Paragraphs 15 and

16   of   the   Separation     Agreement       violated   public   policy   and   were

unenforceable. See Mother’s Memorandum in Opposition, 11/9/16, at 2. As

Mother argued, Paragraphs 15 and 16 of the Separation Agreement were in

contravention of Pennsylvania’s public policy because the paragraphs

attempted to “bargain away” the Children’s right to adequate support and

“penalize[ Mother] for pursuing her children’s rights.” Id. at 4.

      The trial court held a hearing on Father’s Petition and, on November

23, 2016, the trial court entered an order, granting Father’s Petition in part.

As is relevant to the current appeal, the trial court ordered Mother “to pay

[Father] $910.00 per month for two years pursuant to Paragraphs 15 and 16

of the [] Separation Agreement.” Trial Court Order, 11/23/16, at 1.

      Mother filed a timely notice of appeal.         She raises one claim to this

Court:

          Are [P]aragraphs 15 and 16 of the [] Settlement Agreement
          against public policy and unenforceable?

Mother’s Brief at 4.


(Footnote Continued) _______________________

the attorney’s fees that he expended to enforce the agreement. Id.; see
also Separation Agreement, 11/9/11, at ¶ 32 (“[i]f either party shall be
found in contempt of [the Separation] Agreement, they shall be liable for the
attorney’s fees of the other party necessary to enforce [the Separation]
Agreement”). However, the trial court denied Father’s request for attorney’s
fees and Father did not appeal that determination. Trial Court Order,
11/23/16, at 1.




                                          -4-
J-S46026-17



      In the case at bar, the Separation Agreement was incorporated, but

not merged, into the divorce decree. Therefore, under Pennsylvania law, the

Separation Agreement survived the entry of the divorce decree and is

governed by the law of contracts. Nessa v. Nessa, 581 A.2d 674, 676 (Pa.

Super. 1990) (“separation or property settlement agreements for support

remain as contracts to be enforced at law or in equity unless they are

merged into a divorce decree or court order.         Upon merger, they are

superseded as contracts and take on all of the attributes of support orders

for purposes of modification and enforcement”) (internal quotations and

citations omitted) (some internal capitalization omitted).

      “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.” Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super.

2005). Nevertheless:

        [since] 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.

Id. at 1257-1258 (internal quotations, citations, and corrections omitted).

      Regarding marital settlement agreements, we have explained that

such agreements are “private undertakings between two parties, each

having responded to the ‘give and take’ of negotiations and bargained



                                     -5-
J-S46026-17



consideration.”   Id. at 1258 (internal quotations and citations omitted).

Thus, marital settlement agreements are “presumed to be valid and binding

upon the parties” and, generally, “[t]he terms of a marital settlement

agreement cannot be modified by a court in the absence of a specific

provision in the agreement providing for judicial modification.”        In re

Ratony’s Estate, 277 A.2d 791, 794 (Pa. 1971); Stamerro, 889 A.2d at

1258 (internal quotations and citations omitted); 23 Pa.C.S.A. § 3105(c)

(“[i]n 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”).

      However, “a court will not enforce a contract which is unlawful or in

violation of public policy.”   Westmoreland Intermediate Unit #7 v.

Westmoreland Intermediate Unit #7 Classroom Assistants Educ.

Support Personnel Ass’n, 939 A.2d 855, 863 (Pa. 2007). As our Supreme

Court has held:

        In assessing whether a contractual agreement violates
        public policy[, the Supreme] Court is mindful that public
        policy is more than a vague goal which may be used to
        circumvent the plain meaning of the contract.

        Public policy is to be ascertained by reference to the laws
        and legal precedents and not from general considerations of
        supposed public interest. As the term “public policy” is
        vague, there must be found definite indications in the law of
        the sovereignty to justify the invalidation of a contract as
        contrary to that policy. Only dominant public policy would
        justify such action. In the absence of a plain indication of


                                     -6-
J-S46026-17


        that policy through long governmental practice or statutory
        enactments, or of violations of obvious ethical or moral
        standards, the Court should not assume to declare contracts
        contrary to public policy. The courts must be content to
        await legislative action. . . .

        It is only when a given policy is so obviously for or against
        the public health, safety, morals or welfare that there is a
        virtual unanimity of opinion in regard to it, that a court may
        constitute itself the voice of the community in so declaring
        that the contract is against public policy.

Ferguson v. McKiernan, 940 A.2d 1236, 1245 n.16 (internal quotations,

citations, and corrections omitted).

      On appeal, Mother claims that Paragraphs 15 and 16 of the Separation

Agreement violate our public policy because the paragraphs “bargain[]

away” the Children’s right to adequate support. We agree.

      One parent “cannot, by contract, bargain away the right of [their]

minor child to adequate support from the [other parent], regardless of the

validity of the agreement as between the parents themselves.” Miesen v.

Frank, 522 A.2d 85, 87 (Pa. Super. 1987) (internal quotations and citations

omitted).   Therefore, in Miesen, this Court invalidated – on public policy

grounds – an agreement between a mother and a father, whereby the

mother agreed to indemnify the father for “any payments of child support

[the father was] obligated to pay.” Id. at 88. The Miesen Court explained:

        To require [the mother] to repay [the father] all the support
        payments he has made and will make in the future would
        undermine his legal duty to support his children to the best
        of his ability. As a result, the indemnification clause would
        defeat the purpose of child support payments for the
        welfare of the child; the money [the father] contributed
        towards his children's support would end up back in his own

                                       -7-
J-S46026-17


        pocket. This attempt to shirk his legally mandated duty we
        cannot allow. . . .

        A child has a right to be supported by his or her parents.
        We cannot permit a parent to indirectly remove that right
        by a contractual indemnification agreement between himself
        and his former spouse.          Thus, we hold that the
        indemnification provision contained within the parties' []
        separation agreement is void as contrary to Pennsylvania
        public policy.

Id. at 87-88 (internal citations omitted).

      Simply stated, Miesen controls the case at bar and mandates that we

vacate the trial court’s order.

      As noted, Paragraphs 15 and 16 of the Separation Agreement declare

that Mother and Father waive their right to alimony “unless [Mother] files

for child support in the future.” Separation Agreement, 11/9/11, at ¶ 15

(emphasis added). In that event, the agreement declares that Father “shall

be entitled to a credit of [$910.00] per month against any child

support Wife may receive for a period of two [] years from the date when

Wife would file for said child support.”     Id. (emphasis added).   Thus, the

agreement ties Mother’s alimony obligation to her request for child

support and then automatically offsets Father’s child support payments –

and Mother’s child support proceeds – by $910.00 per month.           In other

words, the separation agreement works to indemnify Father for child support




                                     -8-
J-S46026-17



payments, but by another name.2 Therefore, as we held in Miesen, we hold

here:

           [t]o require [Mother] to repay [Father $910.00 per month
           in] support payments he has made and will make [for two
           years] in the future would undermine his legal duty to
           support his children to the best of his ability. As a result,
           [Paragraphs 15 and 16 of the Separation Agreement] would
           defeat the purpose of child support payments for the
           welfare of the [Children]; the money [Father] contributed
           towards his children's support would end up back in his own
           pocket. This attempt to shirk his legally mandated duty we
           cannot allow.

See Miesen, 522 A.2d at 87-88.

         In accordance with Miesen, Paragraphs 15 and 16 of the Separation

Agreement are void as against Pennsylvania’s public policy.                Thus,

respectfully, we conclude that the trial court’s ruling to the contrary was in

error.




____________________________________________


2 Whether termed an “indemnification” for child support payments or an
“alimony credit” for child support payments, the practical result is the same.
The Virginia court declared that Mother was entitled to receive $1,043.00
per month from Father for the support of the Children. Trial Court Opinion,
3/21/17, at 2. If Paragraphs 15 and 16 of the Separation Agreement were
valid, they would have the practical effect of reducing the child support
amount by $910.00 and rendering it so that the Children would receive a
mere $133.00 in support per month from Father – which is far below what
the Virginia court held was necessary for the best interests of the Children.




                                           -9-
J-S46026-17



     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




                                 - 10 -
