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[U] G.S.C. v. C.M.C.

Superior Court of Pennsylvania

February 27, 2014

G.S.C., Appellant
v.
C.M.C., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on January 30, 2013 in the Court of Common Pleas of Berks County, Domestic Relations Division, No. 00-0920-00; 99-10921

BEFORE: SHOGAN, ALLEN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

G.S.C. ("Father") appeals from the trial court's Order directing Father to pay $7, 506.50 to C.M.C. ("Mother") for his share of their daughters' extracurricular activities. We reverse and remand.

Father and Mother divorced in March 2000. Father and Mother have two daughters, A.C.C. (d/o/b 3/10/93) and A.M.C. (d/o/b 6/18/96) (collectively "the children"). As part of their Divorce Decree, the trial court incorporated a Post-Nuptial Agreement ("Agreement"), dated and signed on January 20, 2000. The Agreement included a provision that Father pay 50% of the children's extracurricular activities.

On April 4, 2004, Mother filed a Petition to Modify the Support Order. The Master recommended that Father's support obligation be reduced due to a reduction in Father's income and an increase in Mother's income. The trial court entered an Order on March 11, 2005, stating, in part, that Father should pay 45% of the children's extracurricular activities that are deemed reasonable. The trial court stated that the children's soccer, girl scouts, and music lessons were reasonable activities. The trial court further stated that if a child wanted to start a new extracurricular activity, Mother and Father must discuss the advisability of the child's participation.

A.C.C. reached the age of eighteen on March 10, 2011. On March 28, 2011, the trial court entered a new support Order reflecting the emancipated status of A.C.C. The March 28, 2011 Order was silent as to support related to extracurricular activities for A.M.C.

In the interim, on March 9, 2011, Mother filed a Petition for Civil Contempt for Disobedience of a Court Order under Civil Action No. 99-10921.[1] Mother asked the trial court to hold Father in contempt for failing to pay his share of the children's extracurricular activities. Father filed an Answer and a Counterclaim for contempt. On May 3, 2011, the trial court dismissed Mother's Petition and Father's Counterclaim due to the new support obligations set forth in the March 11, 2005 Order. The trial court indicated that Mother should not have filed her Petition solely at Civil Action No. 99-10921. On March 29, 2012, Mother filed another Petition for Civil Contempt for Disobedience of a Court Order under Civil Action No. 99-10921. Father again filed an Answer and Counterclaim. The trial court dismissed Mother's Petition and Father's Counterclaim for the same reasons as the May 3, 2011 Order.

On July 17, 2012, Mother filed a Contempt Petition to Enforce the Agreement and the March 11, 2005 Order, asking the trial court to order Father to pay his share of the children's extracurricular activities. Following a hearing, the trial court entered an Order enforcing the Agreement and the subsequent Orders, and directed Father to reimburse Mother for expenses she had incurred for the children's extracurricular activities. Specifically, the trial court determined that Father's obligation to contribute to the children's extracurricular activities was governed by three documents: (1) the Agreement, which controls the time period between January 20, 2000, and March 11, 2005; (2) the March 11, 2005 Order, which governs the time period between March 11, 2005, and March 28, 2011; and (3) the March 28, 2011 Order, which governs the time period between March 28, 2011, and the date of the hearing, August 29, 2012. The trial court calculated Father's liability for the extracurricular activities to be $7, 506.50.

Father filed a timely Notice of Appeal. The trial court ordered Father to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Father filed a timely Concise Statement and the trial court issued an Opinion.

On appeal, Father raises the following questions for our review:
A. Whether the trial court erred in failing to apply the statute of limitations in ordering [Father to] reimburse [Mother] for extracurricular activity charges allegedly incurred more than four (4) years prior to [Mother's] Petition?
B. Whether the trial court erred in failing to consider the limitations for reimbursement previously ordered by Order dated March 11, 2005, which modified the support provision of the parties' [Agreement], and the modification by the parties on March 28, 2011, which eliminated all provisions for payment of expenses by [Father]?
C. Whether the trial court erred in considering expenses that were incurred more than one year prior to filing of the within Petition?
D. Whether the trial court erred in [its] mathematical computations, so that if the trial court is not reversed, the amount due to [Mother] would need to be calculated?
E. Whether the trial court erred in accepting testimony regarding amounts due to [Mother], where [Mother's] own testimony was too vague and did not establish contempt by a preponderance of the evidence?
F. Whether the trial court erred in failing to award attorney fees to [Father]?

Brief for Appellant at 4 (capitalization omitted).

Our standard of review in support matters is as follows:

When reviewing support matters, this Court must determine whether the trial court abused its discretion. We may find an abuse of discretion only upon proof of more than a mere error in judgment. Instead, such a finding requires clear and convincing evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill-will, prejudice, or partiality.

Pfeifer v. Cutshall, 851 A.2d 983, 985 (Pa.Super. 2004) (citation omitted).

In his first claim, Father contends that the trial court erred in failing to enforce the Agreement pursuant to the rules applicable to contracts, namely the statute of limitations of four years, [2] when it allowed Mother to recover based upon the terms of the Agreement. Brief for Appellant at 7. Father argues that Mother filed the Petition at issue on July 17, 2012; thus, any extracurricular activities costs incurred prior to July 17, 2008, are subject to the statute of limitations and therefore, any recovery pursuant to the Agreement should have been barred. Id. at 8-9.

Generally, courts possess broad authority to enforce the terms of a parties' property settlement agreement, whether merged or unmerged with the divorce decree:

(e) Powers of the court.--If, at any time, 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:
(1) enter judgment;
(9) find the party in contempt. 23 Pa.C.S.A. § 3502(e). Likewise, either party to a property settlement agreement may enforce a property settlement agreement under the Divorce Code:
§ 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.A. § 3105(a). It is well-noted that that section 3105 does not add or subtract any substantive rights of parties subject to a property settlement agreement; instead, it provides an additional method of enforcing their respective rights under the agreement and preserves a party's right to file a civil or equitable action on the agreement itself. Peck v. Peck, 707 A.2d 1163, 1164 (Pa.Super. 1998).

Here, Mother filed a Contempt Petition to Enforce the Agreement. The trial court entered an Order enforcing the Agreement. Thus, based upon the above-cited sections of the Divorce Code, the trial court had, at any time, broad authority to enforce the Agreement, despite the fact that the Agreement was only incorporated into the Divorce Decree. See 23 Pa.C.S.A. §§ 3105(a), 3502(e).[3] Accordingly, Father's statute of limitations claims are without merit.

However, even if we addressed this case under contract law, we would still conclude that Father's claims are without merit. See Crispo v. Crispo, 909 A.2d 308, 313 (Pa.Super. 2006) (wherein this Court, without citing to or analyzing sections 3105 or 3502 of the Divorce Code, addressed the applicability of the statute of limitations to the settlement agreement after a party filed a petition for contempt to enforce the agreement). In Crispo, the parties entered into a marriage settlement agreement that detailed various payments and debts each party would pay. Id. at 309-10. After husband failed to make payments, wife filed a petition for contempt and/or enforcement of the property settlement agreement. Id. at 309. The trial court found husband in contempt and ordered him to fulfill the terms of the settlement agreement. Id. at 311. Husband appealed, claiming that the four-year statute of limitations for contracts and marriage settlement agreements applied to mother's claims. Id. This Court disagreed, concluding that the settlement agreement was a continuing contract and the statute of limitations did not run because the agreement contained ongoing duties for the parties. Id. at 313-15; see also id. at 313 (stating that "[w]hen a contract is continuing, the statute of limitations will run either from the time when the breach occurs or when the contract is in some way terminated."). The Court stated that there are policy concerns in utilizing the statute of limitations to prevent a payment pursuant to a property settlement agreement because a spouse could delay or put off payments for four years to avoid making any obligations under the agreement. Id. at 315.

Here, pursuant to the Agreement, the parties agreed to pay for their daughters' extracurricular activities. See Agreement, 1/20/00, at 2 (stating that Father agrees to pay one-half of the minor children's extracurricular activities). Further, Father was aware of the extracurricular activities, attended competitions and events, and provided transportation for his daughters to the activities. See Trial Court Opinion, 8/8/13, at 11-12. Moreover, there was no provision in the Agreement requiring Mother to demand payment from Father for the extracurricular activities by a specific date. Thus, because Father agreed to pay a portion of the extracurricular activities in the Agreement, and was aware of the activities, we conclude that the Agreement was a continuing contract and that Father's statute of limitations defense would be inapplicable. See Crispo, 909 A.2d at 313-15; see also Fina v. Fina, 737 A.2d 760, 769 (Pa.Super. 1999) (concluding that even though mother failed to demand the money in a timely manner, father must pay 25% of child's college costs as required by a property settlement agreement because the agreement did not require a demand for money by mother, father was aware of the costs, and father never inquired as to the amount due).

In his second claim, Father contends that the trial court erred in failing to consider the limitations regarding reimbursements for extracurricular activities set forth in the March 11, 2005 Order. Brief for Appellant at 9. Father argues that the March 11, 2005 Order only required him to pay 45% of the children's dance costumes and recital fees, not to exceed $428.85 per year, 45% of the costs of the children's soccer, girl scouts, and music activities, and required that any new activities could not be initiated without agreement between the parties. Id. at 10. Father asserts that trial court erroneously granted Mother's claims regarding various activities that were not set out by the March 11, 2005 Order or agreed to by the parties. Id. at 10-18. Father claims that Mother should have filed a petition to modify support if she sought additional payments. Id. at 17.

The trial court has addressed Father's claims and determined that they are without merit. See Trial Court Opinion, 8/8/13, at 10-12. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id.[4]

Father additionally contends that Mother is not entitled to any reimbursement for extracurricular activities following the trial court's entry of the March 28, 2011 Order. Brief for Appellant at 9. Father argues that the March 28, 2011 Order set forth the parties' agreement with regard to support, and there were no provisions for the payment of any extracurricular activities. Id. at 11. Mother concedes that she is not entitled to reimbursement from Father for extracurricular activities occurring after March 28, 2011. Brief for Appellee at 8. Thus, we conclude that Father is entitled to relief on his contention. See Trial Court Opinion, 8/8/13, at 12 (stating that both parties agree that Father is not required to reimburse Mother for expenses related to extracurricular activities after March 28, 2011). Accordingly, we reverse and remand for a calculation of the amount of support due by Father pertaining to the children's extracurricular activities.

In his third claim, Father contends that the trial court erred in considering extracurricular expenses that were incurred more than one year prior to the filing of Mother's contempt Petition. Brief for Appellant at 18. Father points out that under Pa.R.C.P. 1910.16-6(c)(3), claims for reimbursement of medical expenses must be filed within one year of incurring the expenses. Brief for Appellant at 18. Father argues that this rule should be expanded to include other court-ordered expenses, including extracurricular activities. Id. at 18-19. Father asserts that allowing a party to delay seeking payment on expenses creates a hardship to the support payor. Id. at 19.

Here, Father concedes that Rule 1910.16-6(c)(3) does not apply to the instant case. See id. at 18-19; see also Trial Court Opinion, 8/8/13, at 22. Further, Father has not cited to any pertinent case law supporting his argument that Rule 1910.16-6(c)(3) should be expanded to include expenses incurred from extracurricular activities. See Pa.R.A.P. 2119(a). Accordingly, we conclude that Father's claim does not entitle him to relief.

In his fourth claim, Father contends that the trial court made various mathematical errors in computing his share of the extracurricular activities. Brief for Appellant at 19. Father argues that the trial court erroneously assigned 100% of the costs of the children's CCD classes at St. Ignatius to him. Id. Father also argues the trial court erroneously required him to pay 50% of the children's athletic wear from June 6, 2003, until April 24, 2007, even though Father was only required to pay 45% of the expenses after March 11, 2005. Id. Father further asserts that the trial court utilized incorrect numbers with respect to the total cost of the children's athletic wear and shoes. Id. at 19-20.

Here, Mother concedes that Father's above claims regarding mathematical errors made by the trial court are correct. Brief for Appellee at 10. Accordingly, we reverse the trial court's Order calculating the expenses of the extracurricular activities and remand for a determination of the correct expenses. See Trial Court Opinion, 8/8/13, at 14-15 (wherein the trial court sets forth its errors in calculating Father's share of the expenses related to the children's extracurricular activities).[5]

In his fifth claim, Father contends that the trial court improperly considered and credited Mother's testimony in rendering its decision. Brief for Appellant at 20. Father argues that Mother was unclear with regard the costs of the various extracurricular activities. Id. at 21-22. Father also asserts that the parties did not agree to share every extracurricular activity expense. Id. at 20, 22. Father claims that he did not acquiesce to activities simply because he drove the children to them. Id. at 20-21.

Here, the trial court addressed Father's contention regarding Mother's testimony and determined that it is without merit. See Trial Court Opinion, 8/8/13, at 13; see also Mackay v. Mackay, 984 A.2d 529, 533 (Pa.Super. 2009) (stating that "[w]hen the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility determinations, [and] the court is free to choose to believe all, part, or none of the evidence presented.") (citation omitted). We adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 8/8/13, at 13. Furthermore, with regard to Father's claims concerning his acquiescence to the various activities, we adopt the sound reasoning of the trial court for the purpose of this appeal. See id. at 11-12 (stating that Father was aware of the activities, attended competitions and events, and provided transportation to the events; Father also never disapproved or objected to the children's participation in the activities that Mother seeks reimbursement). Accordingly, we conclude that Father's fifth claim is without merit.

In his final claim, Father contends that the trial court erred in failing to award him attorneys' fees. Brief for Appellant at 22-23. Father argues that he was forced to defend himself against allegations that had no factual or legal basis. Id . at 23.

Here, Father failed to raise this claim in his Rule 1925(b) Concise Statement.[6] Thus, this claim is waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006).[7]

Based upon the foregoing, we reverse the trial court's Order and remand for the trial court to enter a correct calculation on the expenses related to the children's extracurricular activities.

Order reversed. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

(Image Omitted).


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