J-A31031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

F. LESLIE GUNTER                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KAREN KOONS A/K/A KAREN GUNTER

                            Appellant                  No. 798 MDA 2014


                  Appeal from the Order Entered April 10, 2014
                  In the Court of Common Pleas of York County
                      Civil Division at No: 2007-FC-1933-15


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 09, 2015

       Karen Koons a/k/a/ Karen Gunter (Appellant) appeals from the April

10, 2014 order entered in the Court of Common Pleas of York County

denying her exceptions to a Master’s Report and Recommendation granting

modification of alimony payments due to Appellant from her former

husband, F. Leslie Gunter (Appellee).1 Following review, we affirm.

       The trial court provided the following procedural background:

             [Appellee] and [Appellant] were divorced on March 7,
       2013.    On May 1, 2013, [Appellee] filed a Petition for
       Amendment of Alimony. On May 2, 2013, the court appointed
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1
   The trial court issued its opinion and order on April 10, 2014, but it was not
filed until the following day, April 11. The trial court subsequently issued an
amended order on April 14, entered on April 15, to correct the names of
counsel. We shall refer to the order appealed from as the April 10, 2014
order.
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     Divorce Master Cindy S. Conley, Esq., at the request of
     [Appellee], to hear the issue of alimony modification.

            A preliminary conference was held on July 1, 2013.
     [Appellant] appeared as a self-represented litigant.      At the
     conclusion of the preliminary conference, a hearing was
     scheduled for July 29, 2013. On July 15, 2013, [Appellant’s]
     newly retained counsel filed an Application for Continuance
     because she wanted to independently confirm the reason for
     [Appellee’s] termination from employment. Accordingly, the
     Master scheduled and held a telephone conference with both
     attorneys to agree on hearing procedures.            No further
     continuance requests were submitted and the hearing was held
     as scheduled. Both parties were present with counsel and
     testified under oath. Both parties timely filed their proposed
     findings of fact on August 6, 2013 and the record was closed.

           Master Conley filed her Report and Recommendation on
     September 6, 2013 granting an alimony reduction to [Appellee].
     On September 19, 2014, [Appellant] timely filed Exceptions to
     the Master’s Report and Recommendation. The transcript of the
     proceedings was filed on October 8, 2013. [Appellee] filed his
     Reply to [Appellant’s] Exceptions on October 9, 2013.

Trial Court Opinion and Order, 4/10/14, at 1-2.

      “[A] master’s report and recommendation, although only advisory, is

to be given the fullest consideration, particularly on the question of

credibility of witnesses, because the master has the opportunity to observe

and assess the behavior and demeanor of the parties.” Moran v. Moran,

839 A.2d 1091, 1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 551.

A.2d 219, 225 (Pa. Super. 1998)). A summary of the Master’s report and

recommendation follows.

     The parties were married on September 24, 1982. They separated on

October 9, 2007.    Findings of Fact, Report and Recommendation of the


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Master Regarding Alimony Modification (Findings of Fact), 9/6/13, at ¶ 7.

They entered into a counseled agreement (Agreement) on August 6, 2012

that resolved their outstanding economic issues. Id. at ¶ 10. Their divorce

was finalized on March 7, 2013. Id. at 9.

       Pursuant to the terms of the Agreement, Appellee was required to

make monthly alimony payments of $2,084 to Appellant until Appellant

reached the age of 65 in 2016. Id. at ¶ 12. The Agreement also provided

for modification of alimony in the event Appellee, “through no fault of his

own, suffer[ed] a reduction in his earnings.” Id. at ¶ 13.

       When the parties entered into the Agreement, Appellee was earning an

annual salary of approximately $90,000 as a Senior Technology Engineer at

NORESCO. Id. at ¶ 15. He was terminated by NORESCO on February 26,

2013 for deficient performance.           Id. at ¶¶ 16, 17.2   He prevailed on an

unemployment compensation claim filed with the Ohio Department of Job

and Family Services, which determined that Appellee was discharged without

just cause. Id. at 18. On March 25, 2013, Appellee secured employment

with Comfort Systems USA Ohio as a Senior Technology Engineer at an

annual salary of $68,000 with the possibility of bonuses.           Id. at ¶ 19.

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2
  Appellees’ employment with NORESCO began in 2006. As noted above,
the parties separated in 2007. At the hearing, Appellant acknowledged her
observations relating to Appellee’s work performance at NORESCO were
limited to the period from his date of hire in 2006 until their separation in
2007. N.T., 7/29/13, at 57.



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Appellee did not voluntarily lose his employment to avoid his support

obligations and he suffered a decrease in income through no fault of his

own. Id. at ¶¶ 22, 23. He mitigated his loss of income by securing new

employment within a month of termination of his previous employment. Id.

at ¶ 24.   Pursuant to the Agreement, in the event Appellee suffered a

reduction in income through no fault of his own, the modified alimony

payment would be calculated using “the current alimony formula, including a

hypothetical mortgage deviation for wife and an additional $200 per month.”

Id. at ¶ 14 (footnote omitted). At the time of the hearing, Appellee’s net

monthly income from his new employer was $4,093.95, not including any

bonuses, and his overall effective tax rate was 28%. Id. at ¶¶ 20-21.

     Appellant, who was awarded a bachelor’s degree in education in 1975,

did not work outside the home during the marriage but instead home-

schooled the parties’ two children. Id. at ¶ 5; N.T., 7/29/13, at 61. Other

than alimony received from Appellee, her only source of income was earned

from substitute teaching for various York County school districts, from which

she grossed $6,246.00 in 2012. Findings of Fact at ¶¶ 25, 27. Due to the

great number of available substitute teachers and the limited number of

available positions, Appellant was unable to secure substitute teaching

positions on a daily basis and failed to obtain other appropriate employment.

Id. at ¶¶ 26, 28. In December 2010, the Domestic Relations Section held

Appellant to an earning capacity of $8 per hour, or a net monthly earning


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capacity of $1,171.65.         Id. at ¶ 29.      Absent any evidence to indicate

Appellant was unable to meet the $8 per hour earning capacity, other than

her apparent unwillingness to seek employment, her monthly net earning

capacity was set at $1,171.65. Id. at ¶¶ 30, 31.

       Using the applicable alimony formula, adding $200 per month per the

Agreement, Appellee’s recommended modified monthly alimony obligation

was $1,547.67, a reduction of approximately $536 per month. Discussion

Regarding Legal and Factual Issues and Conclusion of Law with Respect to

Alimony, Report and Recommendation of Master, 9/6/13, at 13.              In the

event Appellee received cash bonuses from his employer, he would pay 40%

of the bonus to Appellant, less 28% for taxes. Id. at 13-14.

       As noted in the procedural history of this case, Appellant filed

exceptions to the Master’s Report and Recommendation, contending the

modification of alimony was in contravention of the Agreement because

Appellee was terminated for deficient performance, i.e., through his own

fault. Appellant’s Exceptions, 9/19/13, at 2-3, ¶¶ 6, 11. Appellant asserted

that the intention of the parties, as reflected in the Agreement, called for a

reduction in alimony only if Appellee was fired through no fault of his own.

Id. Citing 23 Pa.C.S.A. § 3105(c)3 and Brower v. Brower, 604 A.2d 726


____________________________________________


3
  “In the absence of a specific provision to the contrary appearing in the
agreement, a provision regarding . . . alimony . . . shall not be subject to
(Footnote Continued Next Page)


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(Pa. Super. 1992), Appellant argued that intent of the parties is a paramount

consideration and that courts look to a written agreement to determine the

intent. Id.

      In his reply to the exceptions, Appellee argued that the Master

properly concluded Appellee was not fired through any fault of his own; that

the Agreement provided for modification in the event of termination without

fault; and that the Agreement did not require termination for “intentional”

actions, rather termination “through no fault of his own.” Appellee’s Reply

to Exceptions, 10/9/13, at 1-2, ¶¶ 6, 11.

      In its April 10, 2014 order, the trial court addressed the arguments

raised in Paragraphs 6 and 11 of Appellant’s exceptions.4    With respect to

the Master’s conclusion that Appellee was not terminated for fault, raised in

                       _______________________
(Footnote Continued)

modification by the court.” 23 Pa.C.S.A. § 3105(c) (Certain provisions not
subject to modification).

4
  Exception 6 reads, “Master should not have inferred that [Appellee] was
not terminated for fault because [Appellee] received unemployment
compensation because it is contradictory to Noresco’s termination letter.”
Exceptions 11c and 11e read, “The modification was allowed in
contravention of the agreement between the parties, which stipulated that
[Appellee’s] alimony amount could only be modified if [Appellee]
experienced a reduction of income through no fault of his own” and “[The
Master] found that the alimony amount could be modified because she found
[Appellee’s] firing was not intentional on his part.      However, whether
[Appellee’s] loss of employment was intentional or not was not relevant to
the terms of the agreement, which only contemplated that the alimony could
be reduced if [Appellee] was fired through no fault of his own.” Appellant’s
Exceptions, 9/19/13, at 2-3.



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Paragraph 6, the trial court noted that the Master considered the evidence of

record, including the award of unemployment compensation, the witnesses’

credibility,   the   post-hearing   submissions,     and   the   applicable     law.

Memorandum       Opinion   and   Order,   4/11/14,    at   3.    The   trial   court

acknowledged that the Master found Appellee’s testimony about his

termination credible, while noting Appellant provided no credible competent

evidence to the contrary, other than the letter from Appellee’s former

employer. Id. The trial court concluded, “[The] testimony, as well as the

evidence presented, provides an ample basis for the Master’s decision that

[Appellee] was not terminated for fault.” Id.

      Citing Herwig v. Herwig, 420 A.2d 746, 748 (Pa. Super. 1980)

(master’s report, although advisory, is to be given fullest consideration by

the court, especially on issues of credibility and witnesses), the trial court

concluded:

     After review of the record, the [c]ourt does not find that the
     Master erred in considering the unemployment compensation
     determination. The unemployment compensation determination
     was just one of several factors weighed by the Master in making
     her ultimate decision. The Master heard and observed the parties
     and her credibility determination is given significant effect.

Id. at 3-4. Consequently, the trial court denied Exception 6.

      Turning to Appellant’s Paragraph 11 exceptions, specifically those

raised in Paragraphs 11c and 11e, Appellant focused on the “fault” aspect of

Appellee’s firing.   The trial court acknowledged Appellant’s contention that

Appellee was fired because of his need to play golf every day as well as the

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argument that Appellee diminished his productivity by spending so many

hours golfing. Id. at 4-5. The trial court looked to the Agreement, noting

the court need only examine the writing itself to give effect to the parties’

intent when the language is unambiguous.               Id. at 6 (citing Profit Wize

Mktg. v. Wiest, 812 A.2d 1270, 1274 (Pa. Super. 2002)).                    Here, the

agreement “clearly states that the alimony may be modified if [Appellee]

suffers a reduction in earning through no fault of his own.” Id.5 The court

concluded the evidence indicated Appellee’s earnings reduction was not his

fault. Not only did the unemployment compensation review determine the

termination was not for cause, but also the Master found credible testimony

from Appellee that he was terminated due to the financial situation of the

company. Noting Appellant did not produce any evidence to the contrary,

other than the letter from NORESCO and speculation about the impact of his

golfing activity, the trial court reiterated that a master’s findings of

credibility must be given the fullest consideration. Id. Finding no abuse of

discretion   in   the   Master’s     acceptance   of    Appellee’s   assertions   over

Appellant’s, the trial court agreed with the Master that Appellee was not fired

____________________________________________


5
  We note that Appellant addresses various aspects of contract law in her
brief, including the covenant of good faith and fair dealing, and contends
Appellee should not be able to modify the Agreement unilaterally.
Appellant’s Brief at 5-6. While we do not offer comment on Appellant’s
recitation of the law, we find no support for her assertion that Appellee was
attempting to modify the Agreement. Appellee was simply trying to modify
his alimony payments in accord with the Agreement.



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J-A31031-14


for cause. Id. at 6-7. Because the Master’s modification of alimony was not

in contravention of the Agreement, the trial court denied Exception 11c.

       The trial court next considered Exception 11e, in which Appellant

argued the Master’s finding that Appellee’s firing was “not intentional” is

irrelevant in light of the language in the Agreement that the firing must be

“through no fault of his own.”      The trial court explained that the Master

looked to the Agreement, the terms of which permitted modification if

earnings were reduced through no fault of Appellee.          “After hearing the

relevant testimony and evidence, the Master found that [Appellee’s]

termination was not his fault and that an alimony modification was

appropriate under the agreement.”       Id. at 7.   The Master proceeded to

calculate   the   new   alimony   amount,   calculations   Appellant   does   not

challenge. The trial court found modification appropriate under the terms of

the parties’ Agreement, recognizing the Master determined Appellee both

demonstrated his employment change was not made to avoid support and

mitigated his loss of income.     Id. at 8 (citing Ewing v. Ewing, 843 A.2d

1282 (Pa. Super. 2004)).      Consequently, the trial court denied Exception

11e.

       Appellant filed a timely appeal from the trial court’s order. On appeal,

she presents one issue for this Court’s consideration:

       A. Whether alimony should have been modified in contravention
          of the agreement of the parties where the agreement
          specified that [Appellee] will pay alimony at the rate of
          $2,084 per month until wife reached age 65 and where

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         alimony could only be modified if [Appellee] through no fault
         of his own suffered a reduction in income, but where
         [Appellee] was subsequently fired for deficient performance?

Appellant’s Brief at vii.

      This Court has explained the applicable standard of review as follows:

      The role of an appellate court in reviewing alimony orders is
      limited; we review only to determine whether there has been an
      error of law or abuse of discretion by the trial court. Absent an
      abuse of discretion or insufficient evidence to sustain the support
      order, this Court will not interfere with the broad discretion
      afforded the trial court.

Dalrymple v. Kilishek, 920 A.2d 1275, 1278 (Pa. Super. 2007) (quoting

Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006)). To overturn the trial

court’s decision based on an abuse of discretion, we must find that the trial

court has “committed not merely an error of judgment, but has overridden

or misapplied the law, or has exercised judgment which is manifestly

unreasonable, or the product of partiality, prejudice, bias or ill will as

demonstrated by the evidence of record.” S.M.C. v. W.P.C., 44 A.3d 1181,

1185 (Pa. Super. 2012) (quoting Dudas v. Pietrzkowski, 849 A.2d 582,

585 (Pa. 2004)).

      We have reviewed the trial court’s analysis of the law and the Master’s

credibility determinations, as reflected above. Having done so, we conclude

the trial court neither committed error of law nor abused its discretion by

denying Appellant’s exceptions to the Master’s Report and Recommendation.

Because the Agreement permitted modification, because there is support in

the record for the Master’s finding that Appellee’s job loss was through no

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fault of his own—thereby triggering the modification, and because the

Master properly applied the alimony formula, plus $200 per the terms of the

Agreement, we find no basis for disturbing the trial court’s order denying

Appellant’s exceptions. Therefore, we affirm the April 10, 2014 order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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