No. 1975 EDA 2010 Appeal from the Order Dated June 15, 2010, in the Court of Common Pleas of Philadelphia County, Domestic Relations, at No: PACSES#462110921 & Docket #08- 01664.
The opinion of the court was delivered by: Opinion BY Bowes, J.:
BEFORE: BOWES, ALLEN, and FREEDBERG, JJ.
Yvonne A. Love ("Wife") appeals from the allocated support order entered on June 15, 2010, wherein the trial court fashioned a spousal support award without applying James C. Love's ("Husband") commitment to support Wife in an amount equal to 125 percent of the Federal Poverty Guidelines pursuant to the Form I-864 affidavit of support ("Affidavit") that he filed with the Department of Homeland Security in order to secure her status as a permanent resident of the United States. We reverse and remand for further proceedings.*fn1
Wife is a German citizen. Her relationship with Husband bore a single child during 2003. Wife married Husband on October 29, 2005. In order to facilitate Wife's lawful immigration status and permit her to become a permanent resident of the United States, Husband executed an Affidavit pursuant to §213A of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1183(a), on March 4, 2008. The Affidavit required Husband to sponsor Wife and provide her with a minimum level of financial support equal to 125 percent of the Federal Poverty guidelines. The parties separated during May 2009. Wife filed a complaint for child support on June 9, 2009, and amended the complaint on September 1, 2009, to request spousal support.
The trial court summarized the support proceedings as follows:
The matter was heard by a Support Master, who submitted a [proposed] order on October 5, 2009, pursuant to which Appellee Husband ("Husband") was to pay $587.68 for the support of the child and $420.68 per month in spousal support, for a total support obligation of $1008.36 per month. An Immigration Affidavit of Support, form I-864, was listed as one of Wife's exhibits in the Master's Report. The Report noted that Wife testified Husband signed said Affidavit, but no other reference was made to it in the Report. Findings of fact, conclusion of law and support calculations were based on the support guideline schedule set forth in Rule 1910.-3, Pa.R.Civ.P.
Husband filed exceptions to the purposed order on October 20, 2009, which were heard by this court on January 15, 2010. The exceptions were granted in part and the matter was remanded to the Support Master to impute an earning capacity to Wife and to submit a new proposed order without additional testimony. A revised proposed order was submitted on February 4, 2010, pursuant to which Husband was to pay $533.38 for the support of the child and $45.34 in spousal support. Wife filed exceptions on February 24, 2010, which were heard on June 15, 2010. Wife challenged the calculation of Husband's income, the computation of an earning capacity for Wife, the application of a multi-family reduction for Husband, the omission of child care costs and the failure to consider the I-864 Affidavit under section 213A of the Immigration and Nationality Act.[*fn2 ] This court granted Wife's exceptions, directing that Husband pay $622.00 per month for the support of one child and $323.00 per month in spousal support, for a total support obligation of $945.00 which was only $63.00 less than the original obligation. In granting Wife's exceptions, the earning capacity imputed to Wife was reduced by the court and a correction was made to Husband's income amount. The I-864 Affidavit was not applied in setting the support obligation, based on the findings that Pa. Support Guidelines are controlling[,] N.T. 6/15/10, pp. 21-22[,] and that Wife's remedy lay in federal court.
Trial Court Opinion, 8/30/10, at 2-3. This timely appeal followed. Wife complied with the trial court's order directing her to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Although Wife presents three questions for our review, she only preserved one issue in her rule 1925(b) statement, which we rephrase for clarity and ease of disposition as follows: Whether the trial court erred in fashioning the support order without regard for Husband's contractual obligations pursuant the INA Affidavit. See Appellant's brief at 3. The remaining issues Appellant seeks to assert on appeal are waived. Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (issues not raised in the Rule 1925(b) statement are waived).
In spousal support cases, our standard of review requires that we determine whether the trial court has, in deciding the case, abused its discretion; that is, [not whether the trial court has merely committed] an error of judgment, but [rather whether the trial court] 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.
Lawson v. Lawson, 940 A.2d 444, 447 (Pa.Super. 2007).
Wife assails the trial court's refusal to enforce the INA Affidavit during the support proceedings. The Affidavit imposed a contractual obligation upon Husband to support Wife at or above 125 percent of the Federal Poverty Guidelines applicable to the size of her household. The contractual obligation, which is independent of spousal support and survives divorce,*fn3 is enforceable by Wife, the federal government, any state government, and any governmental agency that provides Wife a means-tested public benefit. See 8 U.S.C. § 1183a (a)(1)(B). Moreover, Wife may enforce the Affidavit's financial obligation "in any appropriate court. . . ." 8 U.S.C. §1183a(e).
Relying upon its interpretation of our Supreme Court's holding in Nicholson v. Combs, 703 A.2d 407 (Pa. 1997), the trial court refused to enforce the Affidavit during the support proceedings because essentially it was an agreement between the parties. The court opined, "spousal support orders are afforded statutory process and enforcement . . . [but] . . . "[b]y way of contrast, agreements are not afforded the enforcement tools of the court[.]" Trial Court Opinion, 8/30/10, at 8. Accordingly, the trial court reasoned that the Domestic Relations Code and the concomitant support guidelines foreclosed it from considering Husband's obligations pursuant to the Affidavit in formulating the support order. The trial court concluded that Wife should seek to enforce Husband's obligation as a separate civil matter. For the following reasons, we find that the trial court erred in failing to apply Pa.R.C.P. 1910.16-5 in order to enforce the baseline amount of support established in the Affidavit as a deviation from the presumed guideline amount.
The trial court's reliance upon Nicholson, supra is inapposite. Nicholson addressed whether a child support provision contained in a property settlement agreement that was incorporated, but not merged, into a divorce decree prior to the effective date of 23 Pa.C.S. § 3105, may be subject to a reduction by the trial court. In holding that such a provision is not subject to modification, the Supreme Court reasoned that the property settlement agreement and a court-imposed child support order establishing the same support obligation can coexist and that "the existence of a proceeding on the support order in the family court does not preclude a payee from initiating a separate civil action based on a support agreement either for compensatory damages or for specific performance." Id. at 417 (emphasis added). Thus, contrary to the trial court's interpretation, the Nicholson Court did not hold that a party seeking to enforce an agreement must file a separate cause of action. Instead, the Supreme Court reasoned that a payee is permitted to institute a separate civil action and it outlined the potential benefits of that decision. Id. While we recognize Wife's right to initiate a separate lawsuit against Husband if she desires, we do not conclude that she is precluded from enforcing the Affidavit in the subject support proceedings.
Further, the Supreme Court's discussion in Nicholson addressing the interplay between a property settlement agreement and a child support order is not instructive to our decision in the case at bar. The Supreme Court decided Nicholson pursuant to the law before the 1988 amendments to the Divorce Code. Prior to those amendments, case law prohibited the downward deviation of child support obligations included in property settlement agreements that were incorporated but not merged into the divorce decree. Id. at 411. However, a trial court maintained authority to decrease a child support order based upon changed circumstances. Thus, in deciding the pertinent issue in Nicholson, the Supreme Court distinguished between the procedure to enforce an agreement and the procedure to enforce a child support order. Id. at 414. In contrast to the state of the law that formed the basis for the Nicholson decision, the case sub judice must be decided pursuant to current law, which clearly permits parties to a property settlement agreement to enforce the terms of their agreement in the domestic relations court. See 23 Pa.C.S. § 3105(a).
Section 3105(a) permits either party to a property settlement agreement to enforce the agreement in the domestic relations court regardless of whether the agreement was merged or incorporated into the divorce decree. That statute provides, in pertinent part, as follows: § 3105. Effect of agreement between parties
(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.
23 Pa.C.S. § 3105(a) (emphasis added). Thus, the trial court's reliance upon Nicholson is unpersuasive. Simply stated, since the current state of the law permits parties to enforce support provisions in property settlement agreements as if they were court orders, the portion of the Nicholson Court's rationale distinguishing between the enforcement procedures for support orders and agreements is no longer germane. See Nicholson, supra at 414.
Moreover, it was error for the trial court to hold that Wife's sole remedy would be to initiate a separate proceeding in order to enforce Husband's support obligation. As we noted supra, neither our Supreme Court's precise holding in Nicholson nor its underlying reasoning would preclude Wife from presenting evidence concerning Husband's support commitment pursuant to the Affidavit in order to assist the trial court in calculating Husband's court-ordered support obligation.
Herein, the trial court could have, but failed to, utilize Pa.R.C.P. 1910.16-5(b)(1) and (9)*fn4 to enforce the Affidavit as an allowable deviation from the support guidelines. Pursuant to Rule 1910.16-5, the trial court is permitted to fashion a support order that deviates from the support guidelines as long it identifies the guideline amount and specifies the reasons for the deviation. As Wife argues convincingly in her brief, Husband's uncontested commitment to support her at a minimum amount equal to 125 percent of the Federal Poverty Guidelines is tantamount to an exceptional circumstance that would warrant a deviation from the guideline amount.
(b) Factors. In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) the relative assets and liabilities of ...