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07/28/97 RONALD THOMSON v. CONSTANCE ROSE

SUPERIOR COURT OF PENNSYLVANIA


July 28, 1997

RONALD THOMSON
v.
CONSTANCE ROSE, APPELLANT

Appeal from the Order dated September 13, 1996 in the Court of Common Pleas of Allegheny County, Civil Division, No. 1117-07-80. Before MACHEN, J.

Before: Cirillo, P.j.e., and Johnson and Ford Elliott, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

Filed July 28, 1997

OPINION BY CIRILLO, P.J.E.:

This is an appeal from an order of the Court of Common Pleas of Allegheny County. We affirm.

Appellant, Constance Rose (Mother), and Appellee, Ronald Thomson (Father), were married in 1971 and divorced in 1980. Three children were born of the marriage: Brian, born on October 13, 1972; Scott, born on March 7, 1975; and Lisa, born on December 5, 1977. On July 29, 1980, Mother and Father entered into a Marriage Settlement Agreement. The Agreement provided that Father had custody of the three children and Mother was obligated to pay child support to Father as follows: $225.00 per month, reduced by one-half as each child reached 18 years of age or otherwise became emancipated. The Agreement was incorporated, not merged, into the divorce decree.

In 1988, the parties' oldest child, Brian, began residing with Mother. At that time, Mother began paying reduced payments of $100.00 per month. Mother made no payments after August of 1989. On March 7, 1993, the parties' other son, Scott, turned eighteen. In June of 1995, six months prior to the youngest child's eighteenth birthday (December 5, 1995), Father filed a pro se petition in civil contempt to enforce the support provisions of the Agreement. Thereafter, on August 30, 1995, the contempt hearing was continued. The parties entered into an interim consent order which was approved by the court and filed on September 7, 1995. The order required Mother to pay Father $200.00 on the 20th day of each month, and it required Mother to pay Father $4,000.00 toward arrears on or before September 9, 1995. The order stated that a determination of the support arrears and the issue of educational support would be made at a review hearing.

Mother made the $4,000.00 payment; she also made two support payments, each in the amount of $200.00. Thereafter, Mother discontinued payments. After two review hearings the hearing officer recommended arrears be set at $5,950.00. Mother filed exceptions. On September 13, 1996, the trial court dismissed the exceptions and entered the interim order as a final order. *fn1 Mother appeals from this order and raises one issue:

Whether the trial court erred in denying exceptions and miscalculating arrearages owing on Mother's support obligation in light of the plain language of the Marriage Settlement Agreement.

Mother argues that the plain language of the Agreement clearly sets forth the amount and calculation method for child support. *fn2 Mother contends that "there is doubt that the Agreement is enforceable by the Family Division Judge as an Order of Court when there is no evidence that the Marriage Settlement Agreement was ever merged with the Divorce Decree." We disagree. Our scope of review in child support cases is well settled. We will not disturb a child support order absent an abuse of discretion, resting upon clear and convincing evidence. Kelly v. Kelly, 430 Pa. Super. 31, 34, 633 A.2d 218, 219 (1993). An abuse of discretion occurs if insufficient evidence exists to sustain a support award, if the trial court overrides or misapplies existing law, or if the judgment exercised by the trial court is manifestly unreasonable. Id.

In Sonder v. Sonder, 378 Pa. Super. 474, 549 A.2d 155 (1988)(en banc), this court held that where the parties' agreement provided for support and the agreement was incorporated, but not merged, into the divorce decree, the agreement survived the divorce decree and could be enforced at law (in assumpsit) or equity (specific performance); the dispute was governed by the law of contracts. Sonder, Pa. Super. at , 549 A.2d at 162. If, however, an agreement was merged into the divorce decree, it would take on "all of the attributes of support orders for purposes of modification and enforcement." Id. at 512, 549 A.2d at 175. See Jones v. Jones, 438 Pa. Super. 26, 29, 651 A.2d 157, 158 (1994); McMahon v. McMahon, 417 Pa. Super. 592, 612 A.2d 1360 (1992)(en banc); Flick v. Flick, 408 Pa. Super. 110, 113, 596 A.2d 216, 218 (1991).

The Sonder court noted, however, that agreements which provided for both property and support matters, or "hybrid" agreements, see Sonder, 378 Pa. Super. at 492 n.4, 549 A.2d at 164 n.4, were subject to court intervention. The court stated that it is "inconceivable" that such agreements would be irreversible when the interest of Justice and the best interests of the child require otherwise. Id. at 493, 549 A.2d at 164-65. "[V]isitation and custody matters will be enforced according to the best interests of the child and as with support orders, advisory effect will be given to the agreement but without binding effect on the court when it is not in the best interests of the child." Id. at 493, 549 A.2d 165 (emphasis added). Parties to a separation agreement cannot bargain away the rights of the children; the interests of the child will always be subject to the watchful eyes of the court. See Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991); Shirley v. Javan, 454 Pa. Super. 131, 684 A.2d 1088 (1996); Sonder, (supra) .

As a result of 1988 and 1990 amendments to the Divorce Code, *fn3 the enforcement provisions, remedies, and sanctions of the Divorce Code became available to parties to an agreement so long as the agreement pertains to matters within the court's jurisdiction under the Divorce Code. See 23 Pa.C.S.A. §§ 3101; 3105(a). The amendments expressly permit parties to enforce agreements through the remedies available in the Divorce Code; this includes the courts' enforcement powers and powers of contempt. See 23 Pa.C.S.A. § 3105(a); see also 23 Pa.C.S.A. § 3502(e)(9)("If, . . . a party has failed to comply with an order of equitable distribution, as provided for in this chapter or with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available under this part, in order to effect compliance with its order: . . . find the party in contempt.").

Section 3105(a) pertains to matters under Part IV of Title 23; it is Part V that addresses child support, specifically Chapter 43. See 23 Pa.C.S.A. § 4321 (Liability for support); see also 23 Pa.C.S.A. § 4321(3)("Parents may be liable for the support of their children who are 18 years of age or older."). The legislature did not extend section 3105(a) of the Divorce Code to Part V of the Domestic Relations Code, see 23 Pa.C.S.A. § 101, because parties' agreements pertaining to matters of child support or child custody are always subject to court intervention. See Sonder, Pa. Super. at , 549 A.2d at 164-165; see also 23 Pa.C.S.A. § 3105(b)(provisions pertaining to custody, support or visitation are subject to modification by the court upon a showing of changed circumstances); 23 Pa.C.S.A. § 4352 (continuing jurisdiction over support orders).

Here, the parties' Agreement addresses both property and child support matters. The Agreement, like that in Sonder, was executed prior to the effective date of the 1988 Amendments. *fn4 The Agreement was not merged into the divorce decree. Father, therefore, could have filed an action at law or in equity on the contract, or he could have filed a separate complaint in support. Father filed a petition to enforce the Agreement by way of a civil action in contempt. Prior to any hearing on that petition, however, the parties entered into a consent order. This order, embodying the parties' modifications to the agreement, and entered into after the 1988 Amendments, was subject to the court's enforcement powers.

Section 4352(a) of the Domestic Relations Code,(Subchapter C of Chapter 43, pertaining to support matters generally) provides in part:

The court making an order of support shall at all times maintain jurisdiction of the matter for the purpose of enforcement of the order and for the purpose of increasing, decreasing modifying or rescinding the order . . .

23 Pa.C.S.A. § 4352(a). The parties, having consented to the entry of a support order, subjected themselves and the order to the continuing jurisdiction of the court of common pleas. 23 Pa.C.S.A. § 4352(a). Mother's arguments that the court was precluded from modifying the parties' Agreement with respect to child support and that the court had no power to enforce the support order are meritless. The 1988 amendments to the Divorce Code, which enlarged the trial court's intervention and enforcement powers and blurred the distinction between merged and incorporated agreements, were never intended to supplant the well established rule that the courts may always intercede on behalf of the children. Even if we were bound by the pre-1988 amendment Agreement, without modification by the parties' 1995 consent order, we note that the court's enforcement powers would not be restricted. Regardless of the obliteration of the distinctions between merger and incorporation of parties' agreements, it remains the law that matters pertaining to child support are always subject to court supervision. The law prior to the 1988 Amendments recognized the court's power to intervene on behalf of a child. See Sonder, (supra) . See also 23 Pa.C.S.A. § 3105(b) ("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."); 23 Pa.C.S.A. § 4352 (continuing jurisdiction over support orders).

Order affirmed.

JOHNSON, J., files a Concurring Statement.

Filed July 28, 1997

CONCURRING STATEMENT BY JOHNSON, J.

This appeal was submitted to our Court without argument. Father and Mother each filed cross-appeals. Father's appeal was discontinued on February 2, 1997. Mother contends that the trial court miscalculated arrearages owing on her child support obligation.

I agree with my distinguished colleagues that the standard of review in child support cases is abuse of discretion. Ball v. Minnick, 538 Pa. 441, 448, 648 A.2d 1192, 1196 (1994). An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. Landis v. Landis, 456 Pa. Super. 727, , 691 A.2d 939, 940 (1997). A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground. Id.

The Opinion of Judge Donald E. Machen relies on the Hearing Summary of the hearing officer in determining the amount of arrearages due by Mother. After my review of the Opinion and the Hearing Summary, I am unconvinced that Mother has demonstrated any abuse of discretion by Judge Machen. The amount of support is determined by reviewing the agreement between the parties. I would decline to trace the history of the merger or incorporation of agreements into divorce decrees and the impact of the 1988 and 1990 amendments to the Divorce Code, because these issues have not been raised by Mother in her Brief.

I agree that the order of support must be affirmed since Mother has not established any abuse of discretion by the trial court.


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