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HomeMy WebLinkAbout98-2015 CivilGERNILEE CARTER GRAMLING, Plaintiff Vo MARK W. GRAMLING, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- LAW : No. 98-2015 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 21st day of April, 1999, upon consideration of Plaintiff's complaint for breach of contract, following a nonjury trial and for the reasons stated in the accompanying opinion, the court finds in favor of Defendant and against Plaintiff and Plaintiff's complaint is dismissed. Gernilee Carter Gramling 111 South 24th Street Camp Hill, PA 17011 Plaintiff, Pro Se James W. Abraham, Esq. 122 Locust Street Harrisburg, PA 17101 Attorney for Defendant BY THE COURT, I/Wesley Ole~l/.,"J. ~// ' GERNILEE CARTER GRAMLING, Plaintiff Vo MARK W. GRAMLING, Defendant : IN THE COURT OF COMMON PLEA'S OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- LAW : : :No. 98-2015 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 21, 1999. This contract action presents the issue of whether damages based upon a child support figure in a 1989 marital settlement agreement are recoverable from the obligor, where, inter alia, (1) the figure was designated as a modification of an existing support order, (2) the figure was described as a resolution of an appeal from the support order, and (3) for years thereafter the parties litigated the obligor's support obligation in support courts. A nonjury trial in the matter was held on March 4, 1999. Briefs have been submitted by the parties. For the reasons stated in this opinion, the court will find in favor of the Defendant obligor. FINDINGS OF FACT Plaintiff is Gemilee Carter Gramling, an adult individual residing at 111 South 24th Street, Camp Hill, 'Pennsylvania. Defendant is Mark Wade Gramling, an adult individual residing at 201 Modena Drive, Cary, North Carolina. The parties are the parents of a fourteen-year-old daughter, Marcel L. Gramling, whose date of birth is February 4, 1985. The parties were married on November 27, 1982. They separated in November of 1985, and were divorced on December 6, 1989. The marital settlement agreement which is the subject of this case was entered into on October 17, 1989.~ Both parties were represented by counsel according to the agreement. With respect to child support, the agreement provided as follows: Husband agrees to modify the current Order in Dauphin County Domestic Relations, 460 D.R. 1988 of $140 per week for the support of Marcel L. Gramling to pay $190 per week effective September 25, 1989, and to continue to pay as spousal support $50 per week until the issuance of the Final Decree in Divorce. Wife hereby agrees to dismiss with prejudice the appeal of the January 17, 1989 Order of Judge Morrison pending in the Superior Court. Husband agrees to the voluntary attachment of his wages and a wage attachment is currently in effect through Dauphin County Domestic Relations. Further, Husband shall continue to cover Marcel as a dependent on his health insurance policy for as long as Marcel is eligible to be claimed as a dependent.3 Another paragraph of the agreement, entitled "Alimony," provided as follows: Husband agrees to pay the sum of $50 per week as alimony upon the issuance of the Final Decree in Divorce and ending five (5) years from the date of the Decree. The parties agree that the amount of the order may be modified based upon a change in the parties' respective, incomes, but that the term of years shall not exceed five years. Husband's obligation shall cease in the event Wife remarries or cohabits with a member of the opposite sex.4 The final paragraph of the agreement, entitled "Entry As Part of Decree," provided that the agreement would survive any action for divorce, that the divorce decree would not I Plaintiff's Exhibit 1 ( divorce decree and marital settlement agreement). 2 Id., paragraph 8. 3 Id., paragraph 1. 4 Id., paragraph 2. 2 affect or modify the financial terms of the agreement, and that the agreement would be incorporated but not merged into the divorce decree,s This paragraph also included these sentences: It is specifically agreed that the five-year term of the alimony provision [contained in the agreement] is non-modifiable. This Agreement shall be enforceable under the Divorce Code of 1980, as amended.6 The parties' divorce decree, entered about two months after the marital settlement agreement was executed, contained this provision regarding the agreement: ... [T]he Matrimonial Settlement Agreement executed by the parties on October 17, 1989 is incorporated herein and the parties are ordered to comply with the terms of said Agreement.7 Since the execution of the marital settlement agreement and divorce in-1989, the parties have litigated Defendant's child support obligation in support courts in Maryland and Pennsylvania. However, on April 13, 1998, Plaintiff commenced the instant contract action against Defendant, seeking to recover $20,180.00 plus interest from Defendant for failing over the years to pay child support in accordance with the figure provided in the 1989 marital settlement agreement? At the nonjury trial, the parties differed in their testimony as to whether the child support figure in the agreement was intended to be modifiable by the courts? At the conclusion of the trial, the court took the matter under advisement and requested that briefs s Id., paragraph 10. 6Id. 7 Plaintiff's Exhibit 1 (divorce decree and marital settlement agreement). s At trial, the principal amount claimed by Plaintiffwas stipulated to be $32,200.00. N.T. 20. 9 See N.T. 22-23, 33. be submitted in support of the parties' respective positions. On the basis of all of the evidence presented, the court has concluded as a factual matter that the parties intended that the child support figure be subject to modification. DISCUSSION With respect to the interpretation of contracts, it has been said that "[t]he primary object in the interpretation of any writing is to ascertain and effectuate the intent of the parties." Warren v. Greenfield, 407 Pa. Super. 600, 607, 595 A.2d 1308, 1312 (1991) (citation omitted). "[A] written contract must be construed as a whole and the parties' intentions must be ascertained from the entire instrument .... "Harrity v. Medical College of Pennsylvania Hospital, 439 Pa. Super. 10, 21, 653 A.2d 5, 10 (1994) (emphasis in original). One of the most helpful factors in determining the intent of parties to a contract can be the course of conduct of the parties subsequent to the contract. Sun Company, Inc. v. Pennsylvania Turnpike Commission, 708 A.2d 875 (Pa. Super. Ct. 1998). With respect to the credibility of witnesses, the rule applicable to cases where a court is acting as the trier of fact is that "the trial court ... is the sole determiner of the credibility of witnesses. The fact-finder is free to believe al!, part, or none of the evidence .... "McClain v. McClain, 693 A.2d 1355, 1360 (Pa. Super. Ct. 1997) (citations omitted). The Divorce Code which was in effect at the time of the parties' agreement and divorce in 1989 contained the following section relating to marital agreements: Section 401.1. Effect of agreement between parties. (a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act 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. 4 (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 cirsumstances. (c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court,l° In the present case, a number of factors have led the court in its capacity as trier of fact to conclude that the parties intended that the child support figure contained in the marital settlement agreement would be modifiable by the courts upon changed circumstances. First, by its terms the child support figure purported to affect only an existing support order and an appeal therefrom. Second, the parties' awareness of the technique of precluding modification by express language was evidenced in another provision of the contract; this technique was not used in connection with Defendant's child support fi ,gure. Third, the agreement evidenced the parties' familiarity with the practice of modifications of contractual support obligations by support courts. ~t Fourth, the divorce decree obtained by the parties incorporated the parties' marital settlement agreement in the decree without excluding its merger. 12 Fifth, the parties for years proceeded on the assumption that Defendant's child support obligation was subject to judicial 10 Act of February 12, 1988, P.L. 66, § 2, 23 P.S. § 401.1 (emphasis added). 11 This familiarity is to be inferred from the employment of language in the marital settlement agreement in accordance with Section 401.1 of the Divorce Code authorizing modification of an aspect of the alimony provision. See supra text accompanying notes 4 and 10. Thus, the parties were acquainted with Section 401.1, which included the provision relating to judicial modification of child support agreements quoted in the text. ~2 Such an omission may have had more significance in 1989 than it would today. See D 'Huy v. D 'Huy, 390 Pa. Super. 509, 568 A.2d 1289 (1990). for accompanying opinion, the court finds Plaintiff's complaint is dismissed. modification.~3 Finally, the testimony of Defendant was more persuasive to the court on the subject of the parties' intent than was that of Plaintiff. For all of the foregoing reasons, the court has concluded that the child support figure contained in the parties' 1989 marital settlement agreement was not intended to survive support court modifications thereof. Consequently, the following order will be entered: ORDER OF COURT AND NOW, this 21st day of April, 1999, upon consideration of Plaintiff's complaint breach of contract, following a nonjury trial and for the reasons stated in the in favor of Defendant and against Plaintiff and BY THE COURT, Gernilee Carter Gramling 111 South 24th Street Camp Hill, PA 17011 Plaintiff, Pro Se James W. Abraham, Esq. 122 Locust Street Harrisburg, PA 17101 Attorney for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. ~3 The consideration of this course of conduct by the court as evidence of the parties' intention with respect to the contractual child support provision is to be distinguished from an application of the doctrine of estoppel. Cf Swartz v. Swartz, 689 A.2d 302 (Pa. Super. Ct. 1997). 6