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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.L.D. IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
D.A.D.
Appellant No. 3280 EDA 2017
Appeal from the Order Entered September 7, 2017
In the Court of Common Pleas of Bucks County
Domestic Relations at No: 2017DR00829
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 26, 2018
Appellant, D.A.D. (“Father”), appeals from an order directing him, inter
alia, to pay $645.00 per month for current child support and $65.00 per month
for arrears to Appellee, B.L.D. (“Mother”). We affirm.
Father and Mother were married for almost thirteen years before
divorcing in 2016. They share one child, P.D., who was born in 2008. On July
13, 2016, Father and Mother entered into a “Stipulation for Agreed Order of
Custody” (“Stipulation”). In relevant part, the Stipulation provided:
13. The parties agree to send [P.D.] to Bryn Athyn Church School.
If the parties do not jointly agree, then [P.D.] will attend public
school. In the event that [P.D.] does attend Bryn Athyn Church
School, the annual cost will be equally shared, including tuition,
books, miscellaneous fees and uniforms.
14. The parties agree that Father will be responsible for providing
health insurance for [P.D.] so long as it is available through his
employment at little or no cost, as is currently the case. In the
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event that there is a change in this status, the parties agree to
reevaluate payment for health insurance and available plans.
15. Costs, co-pays, non-covered expenses and the like related to
medical, dental, optometric, ophthalmic, orthodontic, physical
therapy, psychiatric care, psychological care and medical needs
are to be equally shared by the parties. Each parent shall provide
the other with the statement and receipts documenting payments
made and shall do so on a monthly basis. The parties will then
determine the total expended per month, what each party has
expended per month and whether a party is owed a sum of
money, based upon the equal sharing of out-of-pocket expenses
as stated in this section. If a parent owes the other parent a sum
of money to equal the 50% sharing of out-of-pocket medical and
other expenses set forth herein, that check will be paid within five
(5) days.
* * *
17. As the parties are sharing responsibility, in all respects,
for raising their child, they agree that neither will pursue
child support. The parties agree to discuss major expenditures.
Both parents are putting money into a separate account for [P.D.],
which usage must be agreed to by the parties in order for joint
signature checks to be issued for payment and/or reimbursement
for expenditures. The parties further agree that it is in [P.D.]’s
best interests that the parents work together in this regard.
Stipulation, ¶¶ 13-15, 17 (emphasis added). Mother did not receive any
payment from Father upon the execution of the Stipulation.
On August 2, 2016, the Stipulation was entered as an order of court.
On May 8, 2017, Father filed a petition seeking primary physical custody of
P.D. on the ground that Mother’s behavior was affecting P.D.’s mental
stability. On May 22, 2017, Mother filed a complaint demanding that Father
provide support for P.D. After a support conference on July 28, 2017, a
hearing officer in the court’s Domestic Relations Section entered an interim
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order directing Father to pay $710.00 a month to the Pennsylvania State
Collection and Disbursement Unit, including $645.00 per month for current
support and $65.00 per month for arrears. On the same day, a hearing was
set for September 7, 2017 to determine a final support order.
During a support hearing on September 7, 2017, Mother testified that
she needed additional support because of financial issues that forced her and
P.D. to move in with her mother. In response, Father argued that paragraph
17 of the Stipulation constituted Mother’s permanent waiver of her right to
seek child support. Father also contended that he complied with the other
provisions of the Stipulation by fully paying P.D.’s school tuition, health
insurance and karate lessons and half of the costs of P.D.’s summer camp and
life insurance premiums.1,2 Both parties presented evidence of their
respective incomes. In 2016, Father earned $65,430.00, and Mother earned
$38,600. N.T., 9/7/17, at 11, 35.
Following the hearing, the trial court ordered Father to pay $645.00 per
month for current support and $65.00 per month for arrears and to provide
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1 Father also argued that the hearing officer’s calculation of Mother’s net
income for support purposes did not accurately reflect her earning potential.
Father did not renew this argument in his appellate briefs.
2 Although Mother acknowledged that the parties had created the separate
bank account for P.D. contemplated in paragraph 17 of the Stipulation, Father
did not identify the amount of money that he deposited into this account.
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health insurance for P.D.3 Father filed a timely appeal to this Court, and both
Father and the court complied with Pa.R.A.P. 1925.
Father raises the following issues on appeal:
1. A) Whether the Trial Court abused its discretion or committed
an error of law when, at the hearing, it refused to review, consider,
or apply applicable case law as to whether [Father’s] and Mother’s
fair and binding agreement for the financial well-being of the
parties’ child which contained a clause precluding either parent
from filing for child support from the other, where child’s welfare
is not prejudiced and the agreement is made without coercion,
duress, fraud, and, is fair and reasonable?
B) Whether the Trial Court abused its discretion or committed an
error of law when, at the hearing, it denied [Father] the
opportunity to provide evidence and the Court refused to hear or
consider evidence of a fair and binding agreement between
[Father] and [Mother] for the financial well-being of the parties’
child and where a clause of said agreement precluded either
parent from filing for child support and where both parents were
abiding by said agreement, which should have nullified,
disallowed, or blocked [Mother’s] Petition for Child Support?
C) Whether the Trial Court abused its discretion or committed an
error of law when at the hearing, it refused to enforce [Father’s]
and [Mother’s] agreement for shared financial costs for the well-
being and welfare of the parties’ child and which contained a
clause precluding either parent from filing for child support and
where said agreement did not waive either parent’s financial
responsibility to care for the child nor waive or bargain away the
child’s right to receive child support?
2. Whether the Trial Court abused its discretion or committed an
error of law when, at the hearing, it ruled that [Father’s] Petition
to Modify custody nullified his ability to request that the current
custody order and parts thereof, continue to be enforced
especially when said parts thereof, included a fair and binding
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3 The court also ordered Father to pay 70% of unreimbursed medical expenses
for P.D. that exceed $250.00 annually and directed Mother to pay 30%.
Father does not appeal this decision.
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agreement between [Father] and [Mother] for both parties to
continue to care and be responsible for the financial well-being of
the parties’ child and where said agreement contained a clause
precluding either parent from filing for child support from the
other and where [Father’s] petition for custody modification was
only for physical custody and did not affect the custody
agreement’s portion relevant to child support matters?
Father’s Brief at 8-10.
Father’s arguments all sound the same theme: the trial court abused its
discretion by ordering Father to pay child support, since the Stipulation
provided that “neither [parent] will pursue child support,” and since Father
complied with the rest of the Stipulation by paying P.D.’s entire school tuition,
health insurance and karate lessons and half of her summer camp costs and
life insurance premiums.
The applicable standard of review with respect to support awards
is abuse of discretion; the amount of the support awarded is
largely within the sound discretion of the trial court. A finding that
the court abused its discretion requires proof of more than a mere
error in judgment, but rather evidence that the law was
misapplied or overridden, or that the judgment was manifestly
unreasonable or based on bias, ill will, prejudice, or partiality.
Thus, this Court may reverse the trial court’s determination only
if the court’s order cannot be sustained on any valid ground.
Chapman-Rolle v. Rolle, 893 A.2d 770, 773 (Pa. Super. 2006).
Trial courts award child support based on Child Support Guidelines
promulgated by our Supreme Court. The purpose of the Guidelines is to
ensure “that persons similarly situated shall be treated similarly.” 23 Pa.C.S.A.
§ 4322(a). When examining a petition for child support, the trial court utilizes
the Guidelines to determine the reasonable needs of the child and the ability
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of the obligor to provide support. Id. “In determining the ... ability of the
obligor to provide support, the guideline shall place primary emphasis on the
net incomes and earning capacities of the parties, with allowable deviations
for unusual needs, extraordinary expenses and other factors, such as the
parties’ assets, as warrant special attention.” Id. The trial court may modify
a support order when the moving party proves that a material and substantial
change of circumstances has occurred since the entry of the original or
modified order. 23 Pa.C.S.A. § 3105; McClain v. McClain, 872 A.2d 856,
863 (Pa. Super. 2005).
The duty to support one’s child is absolute, and the purpose of child
support is to promote the child’s best interests. Hanrahan v. Bakker, 151
A.3d 195, 202 (Pa. Super. 2016). Parents have a positive duty to provide
care, control and subsistence for their children as well as a duty to love,
protect and support the child. Petition of Lutheran Children and Family
Services of Eastern Pennsylvania, 321 A.2d 618, 620 (Pa. 1974). Both
parents bear an equal responsibility for supporting their children in accordance
with their capacity and ability to pay. Shindel v. Leedom, 504 A.2d 353,
355 (Pa. Super. 1986). One parent cannot contract away the right of her child
to seek adequate support from the other parent. Miesen v. Frank, 522 A.2d
85, 87 (Pa. Super. 1986). Neither can parents contract for one parent to
indemnify the other parent for any support payments made by the other
parent, for that “would undermine the [other parent’s] legal duty to support
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his children to the best of his ability.” Id.; see Sams v. Sams, 808 A.2d 206,
213 (Pa. Super. 2002) (mother’s agreement to accept reduction in support
from father was invalid; mother had no power to bargain away her children’s
right to support by agreeing to reduction of father’s support obligation, mother
was in desperate need of funds and was left with no meaningful choice but
agree to father’s offer, and mother did not have immediate alternative
remedy).
Relying on Roberts v. Furst, 561 A.2d 802 (Pa. Super. 1989), Father
argues that the Stipulation entitles him to limit P.D.’s support to the items
specified in the Stipulation (private school tuition, health insurance,
unreimbursed medical expenses) and items that Father, in his sole discretion,
elects to pay. We disagree. In Roberts, this Court upheld an agreement
between three persons—the natural father and mother and the mother’s new
husband—releasing the father from further child support obligations in
exchange for his payment of $9,000.00 to the mother and her new husband.
Roberts is distinguishable from the present case in two respects. First, the
mother and new husband in Roberts received a $9,000.00 payment from the
husband, id., 561 A.2d at 802, and were financially capable of supporting the
two children. Id. at 804. Here, in contrast, Mother did not receive any cash
payment from Father. There is no evidence that a third person is willing to
help support P.D.; nor is Mother capable of supporting P.D. on her own. To
the contrary, the trial court observed that Mother is having “financial issues”
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and needs additional support from Father. Trial Ct. Op., 11/15/17, at 7.
Second, the agreement in Roberts did not state that it was permanent. It
left open the possibility that the court could require the father to resume child
support payments if the mother and her husband became incapable of
supporting the children. Id., 561 A.2d at 804. Here, the Stipulation purports
to be permanent. It does not acknowledge that Father would pay support in
the event Mother could not provide adequate support for P.D. The lack of any
contingency indicates Father’s intent to permanently avoid paying for items
that are not expressly mentioned in the Stipulation. This arrangement runs
afoul of the principle that a parent must support his child to the best of his
abilities rather than the limit of his own whim.
Father points to his payment of P.D.’s tuition, health insurance, summer
camp expenses and karate lessons as evidence that he does not intend to
abandon his support obligations. But as Mother observes, under Pa.R.C.P. No.
1910-16.6, these items are additional expenses over and above basic support,
not a substitute for basic support. See Pa.R.C.P. No. 1910-16.6(b-e) (health
insurance premiums, unreimbursed medical expenses, private school tuition
and summer camp are “additional expenses” that fall outside confines of “basic
support”). Father’s willingness to pay for extras does not excuse him from
paying for basics. The trial court’s order ensures that he will pay basic
support.
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Finally, Father argues that the Stipulation did not authorize the trial
court to increase support because the Stipulation only concerns custody
matters, not support. We disagree. The Stipulation has been entered as an
order of court. While its title only mentions custody, its content also
encompasses support matters in paragraphs 13, 14, 15 and 17. The Domestic
Relations Code prescribes, except for circumstances not relevant here,4 that
“[t]he 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. §
4352(a). Thus, the trial court retained continuing jurisdiction to amend the
Stipulation in accordance with the parties’ changing needs for support. The
court’s support order was a proper exercise of its jurisdiction.5
Order affirmed.
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4 These circumstances include support matters involving parties in different
states, 23 Pa.C.S.A. §§ 7101-7903, or in different counties of this
Commonwealth, 23 Pa.C.S.A. §§ 8101-8415.
5 We also note that there is no evidence that the bank account created for
P.D. under paragraph 17 of the Stipulation should reduce Father’s support
obligation, because Father did not testify how much money he put into the
account. Assuming Father deposited money into the account, it is unclear
when and under what circumstances Mother can gain access to these funds.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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